United States District Court, D. South Carolina, Florence Division
F. ANDERSON, JR. UNITED STATES DISTRICT JUDGE.
Fredrick Mays, (“Petitioner”), is currently
incarcerated in the Perry Correctional Institution pursuant
to orders of commitment from the Clerk of Court for
Spartanburg County. Petitioner, proceeding pro se,
filed the instant petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. (ECF No. 1). On February
5, 2019, Warden Scott Lewis (“Respondent”) filed
a Motion for Summary Judgment and filed a return with a
memorandum of law in support. (ECF Nos. 14 & 15). On
February 6, 2019, by order filed pursuant to Roseboro v.
Garrison, 528 F.2d 309, 310 (4th Cir. 1975), Petitioner
was advised of the summary judgment procedure and the
possible consequences if he failed to adequately respond to
the motion. (ECF No. 16). On March 28, 2019 Petitioner
responded. (ECF No. 21). On April 4, 2019, Respondent replied
to Petitioner's response. (ECF No. 22). In accordance
with 28 U.S.C. § 636(b) and Local Civil Rule
73.02(B)(2)(c) (D.S.C.), the case was referred to the
Magistrate Judge assigned to this action prepared a
thorough Report and Recommendation (“Report”) and
opines that this Court should grant Respondent's Motion
for Summary Judgment and dismiss the petition because (1)
Ground Two is procedurally barred; (2) Grounds Three and Four
are not cognizable federal claims appropriate for review; and
(3) Petitioner cannot succeed on the merits on Grounds One,
Five, and Six. (ECF No. 24). The Report sets forth, in
detail, the relevant facts and standards of law on this
matter, and this Court incorporates those facts and standards
without a recitation.
Court is charged with making a de novo determination
of those portions of the Report to which specific objections
are made, and the Court may accept, reject, or modify, in
whole or in part, the recommendation of the Magistrate Judge,
or recommit the matter to the Magistrate Judge with
instructions. See 28 U.S.C. § 636(b)(1).
However, a district court is only required to conduct a
de novo review of the specific portions of the
Magistrate Judge's Report to which an objection is made.
See 28 U.S.C. § 636(b); Fed.R.Civ.P. 72(b);
Carniewski v. W. Virginia Bd. of Prob. & Parole,
974 F.2d 1330 (4th Cir. 1992). In the absence of specific
objections to portions of the Report of the Magistrate, this
Court is not required to give an explanation for adopting the
recommendation. See Camby v. Davis, 718 F.2d 198,
199 (4th Cir. 1983). Thus, the Court must only review those
portions of the Report to which Petitioner has made a
specific written objection. Diamond v. Colonial Life
& Acc. Ins. Co., 416 F.3d 310, 316 (4th Cir. 2005).
objection is specific if it ‘enables the district judge
to focus attention on those issues- factual and legal-that
are at the heart of the parties' dispute.'”
Dunlap v. TM Trucking of the Carolinas, LLC, No.
0:15-cv-04009-JMC, 2017 WL 6345402, at *5 n.6 (D.S.C. Dec.
12, 2017) (citing One Parcel of Real Prop. Known as 2121
E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996)). A
specific objection to the Magistrate's Report thus
requires more than a reassertion of arguments from the
Complaint or a mere citation to legal authorities. See
Workman v. Perry, No. 6:17-cv-00765-RBH, 2017 WL
4791150, at *1 (D.S.C. Oct. 23, 2017). A specific objection
must “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).
stated, nonspecific objections have the same effect as would
a failure to object.” Staley v. Norton, No.
9:07-0288-PMD, 2007 WL 821181, at *1 (D.S.C. Mar. 2, 2007)
(citing Howard v. Sec'y of Health and Human
Servs., 932 F.2d 505, 509 (6th Cir. 1991)). The court
reviews portions “not objected to-including those
portions to which only ‘general and conclusory'
objections have been made-for clear error.”
Id. (emphasis added) (citing Diamond, 416
F.3d at 315; Camby, 718 F.2d at 200;
Orpiano, 687 F.2d at 47).
was advised of his right to object to the Report, which was
entered on the docket on May 23, 2019. (ECF No. 24).
Petitioner filed objections to the Report
(“Objections”) on June 13, 2019. (ECF No. 27).
Respondent replied to the Objections on June 14, 2019. (ECF
No. 29). Thereafter, Petitioner filed a response to the
Respondent's Reply on July 1, 2019. (ECF No. 33). Thus,
this matter is ripe for review.
Rule 56 of the Federal Rules of Civil Procedure, summary
judgment is proper when there is no genuine dispute as to any
material fact and the moving party is entitled to judgment as
a matter of law. Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). A material fact is one that “might
affect the outcome of the suit under the governing
law.” Spriggs v. Diamond Auto Glass, 242 F.3d
179, 183 (4th Cir. 2001) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute of
material fact is “genuine” if sufficient evidence
favoring the non-moving party exists for the trier of fact to
return a verdict for that party. Anderson, 477 U.S.
moving party bears the initial burden of showing the absence
of a genuine dispute of material fact. Celotex, 477
U.S. at 323. Once the moving party makes this showing,
however, the opposing party may not rest upon mere
allegations or denials, but rather must, by affidavits or
other means permitted by the Rule, set forth specific facts
showing that there is a genuine issue for trial. See
Fed. R. Civ. P. 56(e). All inferences must be viewed in a
light most favorable to the non-moving party, but he
“cannot create a genuine issue of material fact through
mere speculation or the building of one inference upon
another.” Beale v. Hardy, 769 F.2d 213, 214
(4th Cir. 1985).
habeas petition raises the following issues:
Ground One: The petitioner was denied the right to effective
assistance of ...