Moore v. Stevenson
Filing
48
OPINION AND ORDER RULING ON REPORT AND RECOMMENDATIONS adopting 38 Report and Recommendations, granting 30 Motion for Summary Judgment filed by Robert Stevenson, denying 47 Motion to Amend/Correct filed by Russell Darryl Moore, denying a certificate of appealability. Signed by Honorable J Michelle Childs on 6/29/2011. (jpet, )
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Russell Darryl Moore,
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Petitioner,
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v.
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Robert Stevenson, Warden,
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Respondent.
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____________________________________)
C.A. No.: 0:10-cv-01413-JMC
OPINION AND ORDER
This matter is before the court on pro se Petitioner Russell Moore’s Petition for Writ of
Habeas Corpus [Doc. 1] under 28 U.S.C. § 2254. Petitioner is a South Carolina state prisoner,
currently serving an aggregate sentence of forty-five years for two counts of common law armed
robbery and two counts of armed robbery to which he pled guilty on September 20, 1996. See [Doc.
38, at 1]. On December 8, 2010, Respondent Robert Stevenson filed a Motion for Summary
Judgment [Doc. 30], and Petitioner filed a Response in Opposition to the Respondent’s Motion for
Summary Judgment on January 7, 2011. [Doc. 36].
The Magistrate Judge’s Report and Recommendation [Doc. 38], filed on March 2, 2011,
recommends that Respondent’s Motion for Summary Judgment [Doc. 30] be granted. The Report
and Recommendation sets forth in detail the relevant facts and legal standards on this matter, and
the court incorporates the Magistrate Judge’s recommendation herein without a recitation.
The Magistrate Judge’s Report and Recommendation 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
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 is charged with making a de novo determination of those
portions of the Report and Recommendation to which specific objections are made, and the court
may accept, reject, or modify, in whole or in part, the Magistrate Judge’s recommendation or
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recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).
DISCUSSION
Petitioner petitions the court for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner’s
petition is based on two grounds: 1) Fourteenth Amendment Right to Due Process, Subject Matter
Jurisdiction, Involuntary Waiver of Presentment; and 2) Sixth and Fourteenth Amendment Right to
Counsel. [Doc. 1, at 5-6].
Petitioner timely filed objections to the Magistrate’s Report and Recommendation.
Objections to the Report and Recommendation must be specific. Failure to file specific objections
constitutes a waiver of a party’s right to further judicial review, including appellate review, if the
recommendation is accepted by the district judge. See United States v. Schronce, 727 F.2d 91, 94
& n.4 (4th Cir. 1984). In the absence of specific objections to the Magistrate Judge’s Report and
Recommendation, this court is not required to give any explanation for adopting the
recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
The court discerns two specific objections to the Magistrate Judge’s Report and
Recommendation. [Doc. 42, at 4, 6]. First, Petitioner objects to the Magistrate Judge’s conclusion
that “whether the state court lacked subject matter jurisdiction is a question of state law, which is
not cognizable in this federal habeas action.” [Doc. 38, at 8 n. 7] (citing Wright v. Angelone, 151
F.3d 151, 158 (4th Cir. 1998)). In this regard, Petitioner appears to argue that “his plea is
unconstitutional and invalid” because the circuit court lacked “jurisdiction to accept his plea and
render a sentence . . . .” [Doc. 42, at 4]. However, Petitioner’s argument is without merit as this
court finds that the Magistrate Judge has correctly identified the law governing a federal court’s lack
of power to review state court subject matter jurisdiction as governed by state law. [Doc. 38, at 8
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n. 7].
In his second specific objection, Petitioner objects to the Magistrate Judge’s conclusion that
his petition is barred because it is untimely under 28 U.S.C. § 2244(d). [Doc. 42, at 6]. The basis
of Petitioner’s objection is that because of newly discovered evidence, he was consequently unable
to timely file his claim of denial of counsel under the Sixth Amendment. [Doc. 42, at 4]. However,
this court finds that Petitioner’s objection is without merit. Based on this court’s review of the
record, the Magistrate Judge correctly concluded that Petitioner’s Petition for Writ Habeas Corpus,
filed on June 2, 2010, was untimely because it was filed well beyond the February 24, 2003,
deadline for a timely filed petition. In addition, the Magistrate Judge correctly concluded that
Petitioner’s arguments concerning newly discovered evidence do not justify application of the
exception to the statute of limitations under § 2244(d) as established by the doctrine of equitable
tolling.
Accordingly, this court adopts the Magistrate Judge’s recommendation [Doc. 38] and grants
Respondent’s Motion for Summary Judgment. [Doc. 30]
CONCLUSION
After a thorough review of the Report and Recommendation and the record in this case, the
court adopts the Magistrate Judge’s Report and Recommendation [Doc. 38] and incorporates it
herein. It is therefore ORDERED that Respondent’s Motion for Summary Judgment [Doc. 30] is
GRANTED. Having fully reviewed the Magistrate Judge’s Report and Recommendation, the court
further DENIES Petitioner’s Motion to Amend/Correct Objections to the Report and
Recommendation. [Doc. 47].
CERTIFICATE OF APPEALABILITY
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The governing law provides that:
(c)(2) A certificate of appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.
(c)(3) The certificate of appealability . . . shall indicate which specific issue or
issues satisfy the showing required by paragraph (2).
28 U.S.C. § 2253(c). A prisoner satisfies this standard by demonstrating that reasonable 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. Therefore, a certificate of appealability is DENIED.
IT IS SO ORDERED.
s/ J. Michelle Childs
United States District Judge
Greenville, South Carolina
June 29, 2011
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