Clark v. Cartledge
Filing
44
OPINION AND ORDER ADOPTING 28 REPORT AND RECOMMENDATION. The Court overrules the petitioner's objections and adopts and incorporates by reference the Magistrate Judge's Report and Recommendation. It is therefore OR DERED that respondent's motion for summary judgment 18 is GRANTED, and the petitioner's motion for an evidentiary hearing 24 is DENIED. Signed by Honorable Bruce Howe Hendricks on 12/4/2014. (gmil) Modified to edit docket text on 12/4/2014 (gmil).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Keith Alan Clark,
) Civil Action No.: 0:13-351-BHH
)
Petitioner, )
)
v.
)
OPINION AND ORDER
)
Larry Cartledge, Warden Perry
)
Correctional Institution,
)
)
Respondent. )
__________________________________ )
The petitioner Keith Alan Clark (“the petitioner” or “Clark”), proceeding pro se, filed
this writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) In accordance with
28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., the within action was referred to United
States Magistrate Judge Paige J. Gossett for pretrial handling and a Report and
Recommendation. Magistrate Judge Gossett recommends that the respondent’s motion
for summary judgment be granted and the petitioner’s motion for an evidentiary hearing be
denied. (ECF No. 28.) The Report and Recommendation sets forth in detail the relevant
facts and standards of law on this matter and the Court incorporates them without
recitation.
BACKGROUND
The petitioner filed this action against the respondent on February 5, 2013,1 alleging
inter alia ineffective assistance of counsel, and violations of the Fifth and Fourteenth
Amendments.
1
On February 3, 2014, the Magistrate Judge issued a Report and
This filing date reflects that the envelope containing the petition was stamped as having
been received on February 5, 2013, by the Perry Correctional Institution mailroom. (ECF No.112.) Houston v. Lack, 487 U.S. 266 (1988) (holding prisoner's pleading is considered filed when
given to prison authorities for forwarding to the district court).
Recommendation recommending that the respondent’s motion for summary judgment be
granted. (ECF No. 28 at 14.) On March 20, 2014, the plaintiff filed Objections. (ECF No.
36.)
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to the court. The
recommendation has no presumptive weight.
The responsibility to make a final
determination remains with the court. Mathews v. Weber, 423 U.S. 261, 270–71, 96 S.Ct.
549, 46 L.Ed.2d 483 (1976). The court is charged with making a de novo determination of
those portions of the Report and Recommendation to which specific objection is made, and
the court may accept, reject, or modify, in whole or in part, the recommendation of the
Magistrate Judge, or recommit the matter with instructions.
28 U.S.C. § 636(b)(1).
However, the court need not conduct a de novo review when a party makes only “general
and conclusory objections that do not 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). In the absence of a timely filed, specific objection, the Magistrate Judge's
conclusions are reviewed only for clear error. See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir.2005).
DISCUSSION
As noted above, the petitioner filed objections to the Magistrate Judge's Report and
Recommendation which the Court has carefully reviewed. However, petitioner’s objections,
while verbose, provide no basis for this Court to deviate from the Magistrate Judge's
recommended disposition. The Magistrate Judge recommended granting the respondent’s
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motion for summary judgment because the petitioner has not shown that the PCR court
erred and misapplied clearly established federal law.
Clark’s federal petition for a writ of habeas corpus raised four grounds for relief. The
Magistrate Judge found that grounds 1, 2, and 4 were barred because they were not
presented to the state appellate courts during Clark’s PCR appeal. As the Magistrate
Judge observed and this Court has previously held, the Supreme Court’s ruling in Martinez
v. Ryan, 132 S. Ct. 1309 (2012) does not apply to ineffective assistance of appellate PCR
counsel. See Barbaris v. Taylor, No. CA 4:12-229-CMC-TER, 2012 WL 6186499, at *1
(D.S.C. Dec. 12, 2012) appeal dismissed, 520 F. App'x 183 (4th Cir. 2013) cert. denied,
134 S. Ct. 445, 187 L. Ed. 2d 298 (2013) (“Ineffective assistance of PCR appellate counsel
does not amount to an independent constitutional violation, and is not therefore ‘cause’ for
a procedural default.”). Clark’s objections do not address this critical conclusion.
With regard to Clark’s third ground for relief, the Magistrate Judge found that Clark
could not demonstrate that his PCR court unreasonably misapplied clearly established
federal law in rejecting his claim of ineffective assistance, and this Court agrees. Moreover,
Clark fails to make a valid, specific objection to this finding. Instead, his objections simply
rehash the same allegations raised in his prior submissions.
Out of an abundance of caution, the Court has carefully reviewed Plaintiff’s
objections and has made a de novo review of the entire Report and Recommendation and
finds that the Magistrate Judge fairly and accurately summarized the facts and applied the
correct principles of law. Upon review, the Court finds Plaintiff’s objections have no merit
and are hereby overruled.
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CONCLUSION
For the reasons stated above and by the Magistrate Judge, the Court overrules the
petitioner’s objections and adopts and incorporates by reference the Magistrate Judge’s
Report and Recommendation. Accordingly, the Report and Recommendation is
incorporated herein by reference. It is therefore
ORDERED that respondent’s motion for summary judgment (ECF No. 18) is
GRANTED, and the petitioner’s motion for an evidentiary hearing (ECF No. 24) is DENIED.
CERTIFICATE OF APPEALABILITY
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.
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/s/Bruce Howe Hendricks
United States District Judge
December 4, 2014
Greenville, South Carolina
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