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Hardy v. Stirling

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

September 30, 2019

Kevin T. Hardy, Petitioner,
v.
Bryan P. Stirling, Respondent.

          ORDER AND OPINION

         Petitioner Kevin T. Hardy filed for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) The matter before the court is a review of the Magistrate Judge’s Report and Recommendation (“Report”) issued on March 8, 2019. (ECF No. 38.) For the following reasons, the court ACCEPTS the Magistrate Judge’s Report (ECF No. 38), GRANTS Respondent Bryan P. Stirling’s Motion for Summary Judgment (ECF No. 29), and DISMISSES Petitioner’s Writ of Habeas Corpus (ECF No. 1) with prejudice.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The Report sets forth the relevant facts and legal standards which this court incorporates herein without full recitation. On July 27, 2005, Petitioner was pulled over on I-85 in Greenville County, South Carolina, for traffic violations and a defective windshield. (ECF No. 38 at 2.) After issuing a warning for the infractions, the officer detained Petitioner until another officer and a canine unit arrived. (Id.) After the canine alerted, the officers discovered five bags of cocaine in a duffel bag in Petitioner’s trunk. (Id.). In October 2005, A jury convicted Petitioner of trafficking cocaine and crack cocaine and then sentenced him to concurrent terms of twenty-five years’ imprisonment. (Id.) Petitioner timely appealed (ECF No. 28-5 at 4) and on May 23, 2012, after full briefing, the South Carolina Court of Appeals affirmed Petitioner’s convictions. See State v. Hardy, 2012 WL 10841841 (S.C. Ct. App. May 23, 2012). Remittitur issued on June 12, 2012. (ECF No. 28-7.)

         On March 12, 2013, Petitioner filed a pro se PCR application in the Greenville County Court of Common Pleas, asserting ineffective assistance of his trial and appellate counsel, and on October 1, 2013, Petitioner amended his PCR application to add ineffective assistance of counsel claims. (ECF No. 28-4 at 1–2.) On October 22, 2014, the PCR court held an evidentiary hearing. (ECF No. 38 at 4.) On December 19, 2014, the PCR court issued an order denying and dismissing Petitioner’s application. (ECF No. 38 at 4.) Petitioner timely filed a petition for writ of certiorari in the South Carolina Supreme Court, raising one issue:

Trial counsel erred in failing to object to the illegal traffic stop of petitioner on the basis of discrimination due to racial profiling because one reason for the stop was that petitioner was a “black male driving alone, ” which constituted an unconstitutional race-based rationale prohibited by the Fourteenth Amendment Equal Protection Clause.

(Id.) On November 9, 2016, after full briefing from Petitioner and the State, the South Carolina Supreme Court denied certiorari, and remittitur issued on November 29, 2016, and was filed on December 15, 2016. (ECF No. 38 at 5.) On February 1, 2017, Petitioner filed this action. (ECF No. 1.) The court issued an order reopening the case after a filing error resulted in a voluntary dismissal. (ECF No. 17.) Petitioner filed an Amended Habeas Petition on October 8, 2018. (ECF No. 20.) Petitioner raises the following grounds for relief:

1. Mr. Hardy’s Conviction Violates the Fourth, Fifth and Sixth Amendments of the United States Constitution as the Trial Court Judge Erred When Admitting Evidence that was Obtained in Violation of the United States Constitution.
2. Mr. Hardy’s Conviction Violates the Fourth, Fifth and Sixth Amendments of the United States Constitution as the South Carolina Court of Appeals Erred by Constitutionalizing a[n] Inordinate and Prolonged Seizure of his Person and Property.
3. Collateral Counsel was Ineffective to the Prejudice of the Applicant by Failing to Raise the Issue of Whether Corporal Owens had Reasonable Suspicion to Prolong the Initial Traffic Stop and Search Mr. Hardy’s Vehicle;
4. Trial and Collateral Counsel were Ineffective to the Prejudice of the Applicant by Failing to Object to Corporal Owen’s [sic] Decision to Frisk Mr. Hardy Pursuant to Terry v. Ohio, which Resulted in Corporal Owens Illegally Obtaining the Money on Mr. Hardy’s Person that was Used as One of the Reasonable Suspicion Factors. This was a Violation of the Applicant[’]s Fifth, Sixth, and Eighth Amendment Rights of the United States Constitution.
5. Trial and Collateral Counsel were Ineffective to the Prejudice of the Applicant by Failing to Object to Corporal Owens[’] Use of Race as One of the Factors that Led Corporal Owens to Believe that Criminal Activity was Afoot. Corporal Owens[’] Use of Race was a Violation of Mr. Hardy’s Fifth, Sixth, Eighth and Fourteenth Amendments of the United States Constitution.

(ECF No. 38 at 14-25 (citing ECF No. 20 at 6–7, 14, 16, 19, 23).)

         II. LEGAL STANDARDS

         The Magistrate Judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge only makes a recommendation to this court, and the recommendation has no presumptive weight. See Mathews v. Weber, 423 U.S. 261, 270–71 (1976). The responsibility to make a final determination remains with the court. Id. at 271. As such, the court is charged with making de novo determinations of those portions of the Report to which specific objections are made. See 28 U.S.C. § 636(b)(1); See also Fed.R.Civ.P. 72(b)(3). In the absence of specific objections to the Magistrate Judge’s Report, the court is not required to give any explanation for adopting the Report. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). Rather, “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.” Diamond v. Colonial Life & ...


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