MICHELLE CHILDS, District Judge.
Petitioner Andre James King, proceeding pro se, brought this action seeking relief pursuant to 28 U.S.C. § 2254. (ECF No. 1.)
This matter is before the court on Petitioner's Motion to Hold in Abeyance (ECF No. 23) and Respondent Warden McFadden's Motion for Summary Judgment (ECF No. 19). In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02(B)(2)(g) D.S.C., the matter was referred to United States Magistrate Judge Shiva V. Hodges for pretrial handling. On December 9, 2014, the Magistrate Judge issued a Report and Recommendation (the "Report") (ECF No. 36) in which she recommended that the court deny Petitioner's Motion to Hold in Abeyance (ECF No. 23) and grant Respondent's Motion for Summary Judgment (ECF No. 19). Petitioner has filed an Objection to the Magistrate's Report and Recommendation (the "Objection"). (ECF No. 41.) For the reasons set forth below, the court
This court has jurisdiction over this matter pursuant to 28 U.S.C. § 2254, which provides that a federal district court has jurisdiction to entertain a § 2254 petition when the petitioner is in custody of a state court in violation of the Constitution, laws, or treaties of the United States.
The Magistrate Judge's Report contains a thorough recitation of the relevant factual and procedural background of the matter. (See ECF No. 36 at 2-4.) The court concludes upon its own careful review of the record that the Report's factual and procedural summation is accurate, and the court adopts this summary as its own. The court will only recite herein background facts pertinent to the analysis of the pending Motions.
Petitioner is currently in custody at the Lieber Correctional Institution ("Lieber") of the South Carolina Department of Corrections in Ridgeville, South Carolina. (ECF No. 1.) "Petitioner was indicted by the Orangeburg County Grand Jury during the September 2005 term of court for: (1) assault and battery with the intent to kill ("ABWIK") . . .; (2) possession of a weapon during commission of a violent crime . . .; and (3) murder. . . ." (ECF No. 36 at 2 (citing ECF No. 20-8 at 42-47).) "Petitioner was found guilty on all counts" (id. (citing ECF No. 20-8 at 32-33)) and sentenced "to concurrent sentences of life without parole for murder, 20 years for ABWIK, and 5 years for possession of a weapon during the commission of a violent crime." (Id. at 3 (citing ECF No. 20-8 at 39-40).) The South Carolina Court of Appeals affirmed Petitioner's sentences and convictions on April 26, 2010, and issued remittitur on May 12, 2010. (ECF Nos. 20-3, 20-4.)
On August 6, 2010, Petitioner filed an application for post-conviction relief ("PCR"), claiming ineffective assistance of counsel and denial of his Sixth and Fourteenth Amendment rights. (ECF 20-8 at 51-56.) After a PCR evidentiary hearing on March 8, 2011, the Honorable Edgar W. Dickson dismissed Petitioner's claim on July 18, 2011. (Id. at 115-123.) Petitioner then appealed the PCR court's decision to the Supreme Court of South Carolina on May 23, 2012, raising the issue: "Did the PCR judge err in refusing to find counsel ineffective for failing to object to the pre-Belcher jury charge in regard to the inference of malice from the use of a deadly weapon when the charge was mandatory presumption rather than a permissive inference?" (ECF No. 20-9 at 3.) The South Carolina Supreme Court denied Petitioner's writ of certiorari on July 25, 2013 (ECF No. 20-11), and issued remittitur on August 13, 2013. (ECF No. 20-12.)
Petitioner filed the instant Petition for Writ of Habeas Corpus (ECF No.1) pursuant to 28 U.S.C. § 2254 on January 7, 2014, asserting the following grounds for relief:
(ECF No. 1 at 5-8.) Respondent filed a Motion for Summary Judgment (ECF No. 19) on May 22, 2014. On December 9, 2014, the Magistrate Judge issued the Report recommending that summary judgment be granted to Respondent. (ECF No. 36.) On January 5, 2015, Petitioner timely filed his Objection to the Report.
The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with this court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court reviews de novo only those portions of a Magistrate Judge's recommendation to which specific objections are filed, and reviews those portions which are not objected to — including those portions to which only "general and conclusory" objections have been made — for clear error. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983); Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The court may accept, reject, or modify, in whole or in part, the recommendation of the magistrate judge or recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).
In almost all circumstances, petitioners seeking relief pursuant to 28 U.S.C. § 2254 must exhaust all available state court remedies before seeking relief in federal court. 28 U.S.C. § 2254(b). Additionally, a court's review of a 28 U.S.C. § 2254 petition is limited by subsection (d) which provides that "[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) 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." 28 U.S.C. § 2254(d). A state court's decision is contrary to clearly established federal law where it "applies a rule that contradicts the governing law set forth" by the Supreme Court of the United States or "confronts a set of facts that are materially indistinguishable from a decision of this [Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). In contrast, a state court's decision involves an unreasonable application of clearly established federal law "if the state court identifies the correct governing legal rule from this [Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case" or "if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 407. "The focus of federal court [habeas] review is on the state court decision that previously addressed the claims rather than the petitioner's free-standing claims themselves." McLee v. Angelone, 967 F.Supp. 152, 156 (E.D. Va. 1997), appeal dismissed, 139 F.3d 891 (4th Cir. 1998).
In the Report, the Magistrate Judge first evaluated Petitioner's request that the court "hold his habeas petition in abeyance to allow him the opportunity to exhaust his state court remedies on the issues presented in his habeas petition." (ECF No. 36 at 4, 5 (citations omitted).) Upon her review, the Magistrate Judge observed that despite the presumption that Petitioner's claims are technically exhausted for the purpose of federal habeas review, they are procedurally barred. (Id. at 5 (citing Coleman v. Thompson, 501 U.S. 722 (1991) (holding that issue not properly raised to the state's highest court, and procedurally impossible to raise there now, is procedurally barred from review in federal habeas)).) The Magistrate Judge further observed that Petitioner has failed to demonstrate either good cause for his unexhausted claims or that his claims are potentially meritorious. (Id.) Therefore, the Magistrate Judge concluded that she must recommend the denial of Petitioner's Motion to Hold in Abeyance. (Id. at 6.)
Upon her consideration of Respondent's assertion that all of Petitioner's claims are procedurally barred or defaulted (see ECF No. 20 at 19-24), the Magistrate Judge observed that (1) Petitioner's Ground 1
In his Objection, Petitioner solely focuses his arguments on trying to convince the court that State v. Belcher, 685 S.E.2d 802 (S.C. 2009), establishes his claim for ineffective assistance of counsel under Ground 2C. In Belcher, the South Carolina Supreme Court held that "a jury charge instructing that malice may be inferred from the use of a deadly weapon is no longer good law in South Carolina where evidence is presented that would reduce, mitigate, excuse or justify the homicide." Belcher, 685 S.E.2d at 803-04. Petitioner argues that "the instruction in Belcher [is] exactly like the one given in his trial." (ECF No. 41 at 12.) Petitioner further argues that Belcher should be retroactively applied to his benefit because his direct appeal was still "in the pipeline" when Belcher was decided, thus his convictions were "pending on direct review."
In assessing the merit of Petitioner's Objection, the court notes that Petitioner's direct state court appeal was based upon an issue dealing with an evidentiary matter
As to the remaining grounds in the Petition, Petitioner did not offer any objection to the Magistrate Judge's recommendation. In the absence of objections to the Magistrate Judge's Report, this court is not required to provide an explanation for adopting the recommendation. 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, 416 F.3d at 315. Upon review, the court does not find clear error and agrees with the Magistrate Judge that Respondent is entitled to summary judgment on remaining Grounds 1, 2A, 2B, 2D, 2E, and 3.
In his Objection, Petitioner did not specifically address the Magistrate Judge's recommendation to the court that it should deny the pending Motion to Hold in Abeyance. To grant Petitioner's Motion to Hold in Abeyance, there must be "good cause for the petitioner's failure to exhaust his claims first in state court." Rhines v. Weber, 544 U.S. 269, 277 (2005). Furthermore, "even if a petitioner ha[s] good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless." Id. (citation omitted). Notwithstanding Petitioner's failure to object to the Magistrate Judge's recommendation, the court finds that the Motion to Hold in Abeyance should be denied because Petitioner does not have "good cause" as to why he failed to exhaust his claims in state court.
For the reasons set forth above, the court
The law governing certificates of appealability provides that:
jurists would find this court's assessment of his constitutional claims is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). In this case, the legal standard for the issuance of a certificate of appealability has not been met.
