United States District Court, D. South Carolina, Greenville Division
F. ANDERSON, JR. COLUMBIA, SOUTH CAROLINA UNITED STATES
Evans, (“Petitioner”), is currently incarcerated
at McDougal Correctional Institution in the custody of the
South Carolina Department of Corrections
(“SCDC”). 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 September
10, 2018, Randall Williams (“Respondent”) filed a
Motion for Summary Judgment and filed a return with a
memorandum of law in support. (ECF Nos. 24 & 25). On
September 11, 2018, 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. 26). On December 11, 2018, Petitioner
responded. (ECF No. 37). On December 18, 2018, Respondent
replied to Petitioner's response. (ECF No. 39). On that
same day, Respondent filed a Motion to Strike the Response in
Opposition. (ECF No. 40). 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.
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)
Grounds 1.2, 1.4, 2, and 3 are procedurally barred and
because (2) Petitioner cannot succeed on the merits for his
claims of ineffective assistance of counsel under Grounds 1.1
and 1.3. (ECF No. 45). 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
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 Plaintiff 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). Petitioner was
advised of his right to object to the Report, which was
entered on the docket on June 28, 2019. (ECF No. 45).
Petitioner filed timely objections to the Report
(“Objections”) on July 11, 2019. (ECF No. 48).
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).
Petitioner asserts three grounds for relief. However, Ground
1 can be broken up into four parts.
Ineffective assistance of counsel for:
a. (1.1) failure to investigate;
b. (1.2) failure to present or obtain trial expert concerning