Opinion
C/A No. 6:00-2563-13AK
August 7, 2002
ORDER
BACKGROUND
This matter is before the Court for a review of the magistrate's Report and Recommendation made in accordance with 28 U.S.C. § 636(b)(1) and Local Rule 73.02(B)(2)(c), D.S.C., and filed on May 22, 2001. Petitioner brought this suit pursuant to 28 U.S.C. § 2254, alleging several different issues. On January 16, 2001, Respondents filed a motion for summary judgment. The magistrate recommends granting Respondents' motion.
Petitioner proceeds pro se. This Court is required to construe pro se pleadings liberally. Such pleadings are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). This Court is charged with liberally construing a pleading filed by a pro se litigant to allow for the development of a potentially meritorious claim. Haines v. Kerner, 404 U.S. 519, 520 (1972)
The magistrate makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with this Court, Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This Court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made, and this Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). This Court may also "receive further evidence or recommit the matter to the magistrate with instructions." Id.
Before a court may dispose of grounds for relief in a § 2254 petition that survives dismissal, it must "determine whether an evidentiary hearing is required." 28 U.S.C. § 2254, Rules Governing Section 2254 Cases, Rule 8(a). "Where the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding." Townsend v. Sain, 372 U.S. 293, 312-13 (1963), overruled on other grounds, Keeney v. Tamayo-Reyes, 504 U.S. 1, 5-6 (1992). After a review of the record, this Court finds Petitioner received a full and fair evidentiary hearing in state court and there are no facts in dispute. Therefore, an evidentiary hearing is not required to address Petitioner's grounds for relief, and this Court may "make such disposition of the petition as justice shall require." 28 U.S.C. § 2254, Rules Governing Section 2254 Cases, Rule 8(a).
II. PETITIONER'S OBJECTIONS
Parties must file with the clerk of court specific, written objections to the Report and Recommendation if they wish the United States District Judge to consider their objections. Any written objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. Fed.R.Civ. p. 72(b); See United States v. Schronce, 727 F.2d 91, 94 n. 4 (4th Cir. 1984); Wright v. Collins, 766 F.2d 841, 845-47 nn. 1-3 (4th Cir. 1985). "Courts have . . . held de novo review to be unnecessary in . . . situations when a party makes general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendation." Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). On July 16, 2001, Petitioner filed objections to the magistrate's Report and Recommendation. After a de novo review, this court finds his objections to be without merit.
First, Petitioner objects to the magistrate's finding that Petitioner's ground for relief concerning "prior bad acts" was procedurally barred. Petitioner did present the claim that his counsel was inadequate in failing to challenge the introduction of "prior bad acts" testimony; however, he did not present the claim that the admission of the testimony by the court was errorneous. Regardless of whether his claim is procedurally barred, the testimony concerning "prior bad acts" did not result in an unfair trial and cannot be considered in these proceedings. Johnson v. Blackburn, 778 F.2d 1044 1050 (5th Cir. 1985). Given the massive amount of evidence against Petitioner, the admission of testimony about other drugs cannot be said to have created a fundamentally unfair result. At the time, state law permitted the introduction of the evidence in question, State v. Moultrie, 316 S.C. 547 (Ct.App. 1994), and much of it was admitted without objection. Consequently, Petitioner's objection regarding "prior bad acts" is without merit.
Next, Petitioner objects to the magistrate's finding that the alleged insufficiency of the indictment did not prejudice Petitioner. Specifically, Petitioner objects to the finding that he provides no specific instance of prejudice, arguing that the state attempted to prove multiple conspiracies. Even with Petitioner's additional explanation, his contention that the indictment was insufficient lacks merit. The South Carolina Supreme Court addressed the issue of the indictment and found that there was no fatal vagueness because Petitioner was permitted to review the testimony of witnesses appearing before the grand jury. State v. Gunn, 313 S.C. 124, 129-130 (1993). After a de novo review of the state court decision, this Court finds that Petitioner's objection is without merit because the decision was not unreasonable or egregiously unfair. Williams v. Taylor, 120 S.Ct. 1495, 1522 (2000), Ashford v. Edwards, 780 F.2d 405 (4th Cir. 1985).
Petitioner also objects to the magistrate's conclusion that the refusal to admit the SLED file into evidence did not deny Petitioner a fair trial. Petitioner states that the exclusion of the SLED file prejudiced his defense. However, the South Carolina Supreme Court held that the evidence was merely cumulative to other testimony. Gunn, 313 S.C. at 138. This holding was not unreasonable or egregiously unfair. Roxanne Gregory testified that she had used drugs and had lied, cheated, and stolen to support her habit. She also testified that she had lied to police officers. Given the substantial negative character evidence contained in Roxanne Gregory's testimony and the deferential nature of habeas corpus review, this Court cannot hold that the South Carolina Supreme Court was objectively unreasonable in determining that the SLED file was cumulative in nature. See U.S. v. Amiel, 95 F.3d 135, 145 (2nd Cir. 1996). Thus, after a de novo review, this Court concludes that Petitioner's objection is without merit.
The magistrate also correctly relied upon the South Carolina Supreme Court's determination as to the refusal to give Petitioner's requested charge. Petitioner objects to the magistrate's adoption of the state court's determination that the refusal to charge was not erroneous or at most would have constituted harmless error. However, the court appears to have included the phrase "Cherokee and York counties" in the definition of the conspiracy. Trial Tr. p. 3268 II. 4-15 (emphasis added). The evidence also showed substantial activities by Petitioner in both counties, removing any actual prejudice from a failure to give a multi-county charge. The South Carolina Supreme Court held that the failure to submit jurisdictional allegations to a jury is not reversible error where the evidence does not conflict. After a de novo review, this Court finds that this holding was not objectively unreasonable or contrary to federal law. Finally, a federal constitutional issue does not appear to have been presented to the state supreme court; therefore, the issue is procedurally barred. Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997).
Petitioner's objection to the finding that the Double Jeopardy Clause was not violated is also without merit. Petitioner argues that the findings of fact in the post conviction relief court were clearly erroneous and objectively unreasonable. Petitioner did not raise a double jeopardy claim on direct appeal; rather, he raised an ineffective assistance of counsel claim relating to the double jeopardy issue. Therefore, his current claim is procedurally barred. In his objections, Petitioner seeks to incorporate this ground as one regarding ineffective assistance of counsel. However, Petitioner did not present this issue to the South Carolina Supreme Court for review, and it is also procedurally barred. Petitioner cannot show cause and prejudice in order to overcome this procedural bar. Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997). Finally, the determination of the PCR court regarding Petitioner's ineffective assistance of counsel argument was also objectively reasonable. Consequently, Petitioner's objection is without merit.
Petitioner objects to the magistrate's finding that Petitioner's pretrial publicity claim was procedurally barred. Both the substantive claim and the related ineffective assistance of counsel claim described in Petitioner's objections are barred by Petitioner's failure to present those claims to the South Carolina Supreme Court for review. Coleman v. Thompson, 501 U.S. 722 (1991).
Petitioner also objects to the magistrate's finding that the trial court would not have granted a severance in his case. This objection is also without merit. As the central figure in the conspiracy, Petitioner was not denied a fundamentally fair trial by the refusal to sever. See U.S. v. Tipton, 90 F.3d 861 (4th Cir. 1996); U.S. v. Tedder, 801 F.2d 1437, 1450 (4th Cir. 1986). Petitioner cannot show that a motion to sever might have been granted or that there is a reasonable probability the outcome would have been different had the motion been made. Petitioner's counsel's performance in this area also did not fall below the standard of objective reasonableness. See U.S. v. Cooper, No. 92-5893, 19 F.3d 1430, at *2 (4th Cir. 1994) (unpublished disposition). Therefore, Petitioner cannot meet either prong of the test for ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984). After a de novo review, this objection also lacks merit.
Finally, Petitioner objects to the magistrate's failure to address his motion for a stay. The magistrate's previous order is sufficient to address the issue, and this Court concurs with the magistrate's finding that Petitioner had ample opportunity to respond to the motion for summary judgment. Petitioner also had sufficient time to raise any new issues in the state courts.
After a de novo review of the magistrate's Report and Recommendation, this Court finds that the report is based upon proper law. Accordingly, the Report and Recommendation is accepted and adopted in its entirety.
IT IS THEREFORE ORDERED that Respondent's motion for summary judgment is GRANTED.
IT IS SO ORDERED.