United States District Court, D. South Carolina, Greenville Division
ORDER AND OPINION
RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE.
the Court is the Report and Recommendation ("R &
R") of the Magistrate Judge (Dkt. No. 42) recommending
that the Court adopt Respondent's motion for summary
judgment (Dkt. No. 20) and deny Petitioner's motion for
subpoena as moot. (Dkt. No. 38.) Also before the Court is
Petitioner's motion to extend time to object to the R
& R. (Dkt. No. 45.) For the reasons set forth below, the
Court adopts the R & R as the Order of the Court to
dismiss the petition and deny the subpoena request as moot.
In addition, Petitioner's motion to extend time is denied
Marshall Dewitt McGaha is a prisoner at the Broad River
Correctional Institution in the South Carolina Department of
Corrections. He filed a pro se petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. (Dkt. No.
1.) Petitioner was found guilty by a jury trial of: two
counts of lewd act upon a child; and two counts of first
degree criminal sexual conduct ("CSC") with a
minor. (Dkt. No. 19-1 at 279-286.) Petitioner was sentenced
to two terms of life imprisonment on the CSC charges, fifteen
years consecutive for the lewd act upon a child charge, and
fifteen years consecutive for the second lewd act charge.
(Id.) Petitioner appealed his conviction, which the
South Carolina Court of Appeals confirmed on June 26, 2013.
(Dkt. No. 19- 4.) Petitioner filed a PCR Application on May
2, 2014 bringing general claims of ineffective assistance of
counsel, which were denied by court order after an
evidentiary hearing. (Dkt. No. 19-1 at 293-299; 353-359.) On
July 2, 2015, Petitioner filed a notice of appeal (Dkt. No.
19-6) and filed a petition for writ of certiorari on February
22, 2016. (Dkt. No. 19-7.) The South Carolina Supreme Court
initially granted the petition, but on February 21, 2018, the
court dismissed the writ as improvidently granted. (Dkt. No.
19-11.) The court issued a remittur on March 9, 2018 and it
was filed by the Greenville County Clerk of Court on March
12, 2018. (Dkt. No. 19-12.)
Petitioner filed a writ of habeas corpus on June 20, 2018 and
now seeks relief on seven grounds. (Dkt. No. 1.) Respondent
filed a motion for summary judgment to dismiss the petition
followed by petitioner's opposition, respondent's
reply, and petitioner's sur-reply. (Dkt. Nos. 19; 20; 23;
26-28.) Also before the court is petitioner's motion for
subpoena and related briefing. (Dkt. Nos. 38; 39; 41.) On
July 17, 2019, Petitioner filed a motion to extend time to
object to the R & R. (Dkt. No. 45.) He filed his
objections on July 17, 2019 and August 12, 2019. (Dkt. Nos.
Review of R&R
Magistrate Judge makes a recommendation to the Court that has
no presumptive weight and the responsibility to make a final
determination remains with the Court. See, e.g., Mathews
v. Weber, 423 U.S. 261, 270-71 (1976). The Court may
"accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate
judge." 28 U.S.C. § 636(b)(1)(C). Where there are
specific objections to the R & R, the Court "makes a
de novo determination of those portions of the
report or specified proposed findings or recommendations to
which objection is made." Id. In the absence of
objections, the Court reviews the R & R to "only
satisfy itself that there is no clear error on the face of
the record in order to accept the recommendation."
Fed.R.Civ.P. 72 advisory committee's note; see also
Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983)
("In the absence of objection ... we do not believe that
it requires any explanation."). Petitioner filed
objections to the R & R and the Court conducts a de
Motion for Summary Judgment
judgment is appropriate if a party "shows that there is
no genuine dispute as to any material fact" and that the
movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). In other words, summary judgment should
be granted "only when it is clear that there is no
dispute concerning either the facts of the controversy or the
inferences to be drawn from those facts." Pulliam
Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir.
1987). "In determining whether a genuine issue has been
raised, the court must construe all inferences and
ambiguities in favor of the nonmoving party."
HealthSouth Rehab. Hosp. v. Am. Nat'l Red Cross,
101 F.3d 1005, 1008 (4th Cir. 1996). The movant has the
initial burden of demonstrating that there is no genuine
issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Once the movant has made this
threshold demonstration, to survive summary judgment the
respondent must demonstrate that specific, material facts
exist that give rise to a genuine issue. Id. at 324.
Under this standard, "[c]onclusory or speculative
allegations do not suffice, nor does a 'mere scintilla of
evidence'" in support of the non-moving party's
case. Thompson v. Potomac Elec. Power Co., 312 F.3d
645, 649 (4th Cir. 2002) (quoting Phillips v. CSX
Transp., Inc., 190 F.3d 285, 287 (4th Cir. 1999)).
Federal Habeas Relief Pursuant to 28 U.S.C.
prisoner who challenges matters "adjudicated on the
merits in State court" can obtain relief in federal
court if he shows that the state court's decision
"was contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court" or "was based on
an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding." 28
U.S.C. § 2254(d). When reviewing a state court's
application of federal law, "a federal habeas court may
not issue the writ simply because that court concludes in its
independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or
incorrectly. Rather, that application must also be
unreasonable." Williams v. Taylor, 529 U.S.
362, 410 (2000). The state court's application is
unreasonable if it is "objectively unreasonable, not
merely wrong." White v. Woodall, 572 U.S. 415,
419 (2014). Meaning, the state court's ruling must be
"so lacking in justification that there was an error
well understood and comprehended in existing law beyond any
possibility for fairminded disagreement." Harrington
v. Richter, 562 U.S. 86, 103 (2011).
state court's determination is presumed correct and the
petitioner bears the burden of rebutting this presumption by
clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
The state court's decision "must be granted a
deference and latitude that are not in operation" when
the case is considered on direct review. Harrington,
562 U.S. at 101. This is because habeas corpus in federal
court exists only to "guard against extreme malfunctions
in the state criminal justice systems." Id. at
102 (citation and internal quotation marks omitted).
Accordingly, pursuant to 28 U.S.C. § 2254(d), a federal
habeas court must (1) determine what arguments or theories
supported or could have supported the state court's
decision; and then (2) ask whether it is possible that
fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding of a prior
decision of the United States Supreme Court.
Harrington, 562 U.S. at 102. "If this standard
is difficult to meet, that is because it was meant to
the petitioner may pursue federal habeas relief to this
standard, he must first exhaust his state court remedies. 28
U.S.C. § 2254(b)(1)(A). Meaning, the petitioner
"must present his claims to the state's highest
court." Matthews v. Evatt,105 F.3d 907, 911
(4th Cir. 1997) (abrogated on other grounds by United
States v. Barnette,644 F.3d 192 (4th Cir. 2011)). This
requires the petitioner to have "fairly present[ed] to
the state court both the operative facts and the controlling
legal principles associated with each claim."
Longworth v. Ozmint, 311 F.3d 437, 448 (4th Cir.
2004) (internal quotation marks omitted). A federal habeas
court should not review the merits of claims that would be
found to be procedurally defaulted or barred under
independent and adequate state procedural rules. Lawrence
v. Banker,517 F.3d 700, 714 (4th Cir. 2008). For a
procedurally defaulted claim to be properly considered by the
federal habeas court, the petitioner must "demonstrate
cause for the ...