McClure v. South Carolina, State of et al

Filing 32

ORDER ACCEPTING 27 REPORT AND RECOMMENDATION. It is ordered that Respondent's Motion for Summary Judgment 16 is GRANTED and this Petition 1 is DENIED Signed by Honorable J. Michelle Childs on 9/24/2014. (gmil)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
John Tamorris McClure,

)
)
Petitioner,
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v.
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Cecilia Reynolds, Warden, KCI,
)
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Respondent.
)
____________________________________)

Civil Action No. 0:13-cv-02006-JMC

ORDER AND OPINION

Petitioner John Tamorris McClure (“Petitioner”) filed this pro se Petition for Writ of
Habeas Corpus action pursuant to 28 U.S.C. § 2254 alleging error by the trial court in denying a
motion to suppress and a motion for a directed verdict and ineffective assistance of counsel.
(ECF No. 1.) This matter is before the court on Respondent Cecilia Reynolds, Warden of
Kershaw Correctional Institution’s (“Respondent”) Motion for Summary Judgment. (ECF No.
16).
In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, the matter was referred to
United States Magistrate Judge Paige J. Gossett for pre-trial handling. On July 14, 2014, the
magistrate judge issued a Report and Recommendation (“Report”) recommending the court grant
the Motion for Summary Judgment and deny the Petition. (ECF No. 27.) This review considers
Petitioner’s Objection to Report and Recommendation (“Objections”), filed August 1, 2014.
(ECF No. 29.) For the reasons set forth herein, the court ACCEPTS the magistrate judge’s
Report. The court thereby GRANTS Respondent’s Motion for Summary Judgment (ECF No.
16) and denies the Petition (ECF No. 1).
FACTUAL AND PROCEDURAL BACKGROUND
The facts viewed in the light most favorable to Petitioner are discussed in the Report.
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(See ECF No. 27.) The court concludes, upon its own careful review of the record, that the
magistrate judge’s factual summation is accurate and incorporates it by reference. The court will
only recite herein facts pertinent to the analysis of Petitioner’s Objections.
Petitioner is incarcerated within the South Carolina Department of Corrections, serving a
15 year sentence, followed by a 9 year sentence due to revocation of probation on a previous
conviction, after being found guilty for possession of crack cocaine with intent to distribute after
a jury trial November 17-18, 2004. (ECF No. 27 at 1.) Petitioner filed a direct appeal on
December 20, 2005. (Id. at 2.) The South Carolina Court of Appeals affirmed the decision of
the trial court on May 23, 2006, and issued the remittitur on June 8, 2006. (Id.) Petitioner filed a
pro se application for Post Conviction Relief (“PCR”) on May 31, 2007. (Id.) The PCR court
held an evidentiary hearing, at which Petitioner appeared and testified on February 13, 2008.
(Id. at 3.) On February 22, 2008, the PCR judge denied Petitioner’s application; Petitioner did
not appeal. (Id.) Petitioner filed a second pro se PCR application on September 18, 2008,
requesting review of his first PCR application denial. (Id.) The state consented to Petitioner’s
belated request for appellate review, and on September 17, 2009, the court filed an order
dismissing the second PCR application. (Id.) Petitioner filed a petition for a writ of certiorari
with the assistance of counsel and an additional petition for a writ pursuant to Austin v. State1 on
September 14, 2010. (Id.) On July 1, 2013, the South Carolina Court of Appeals issued an order
granting the petition pursuant to Austin, and after Austin review, denied the petition for a writ of
certiorari from the final order in Petitioner’s first PCR application. (Id. at 4.) The remittitur was
issued on July 17, 2013. (Id.)
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Austin v. State, 409 S.E.2d 395 (S.C. 1991). “Under Austin, a defendant can appeal a denial of
a PCR application after the statute of limitations has expired if the defendant either requested and
was denied an opportunity to seek appellate review, or did not knowingly and intelligently waive
the right to appeal.” Odom v. State, 523 S.E.2d 753, 755 (S.C. 1999).
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On July 22, 2013, Petitioner filed the Petition, raising four grounds for relief: (1) the trial
court erred in denying Petitioner’s motion to suppress evidence in violation of the Fourth
Amendment, (2) Petitioner’s trial counsel was ineffective for failing to object and preserve the
issue of suppressing drug evidence for review, (3) trial counsel was ineffective for failing to
object and request a mistrial after discovering a conversation between the solicitor and a juror,
and (4) the trial court erred in denying Petitioner’s motion for a directed verdict. (ECF No. 1 at
6-7, 9, 11.) On November 7, 2013, Respondent filed a Motion for Summary Judgment. (ECF
No. 16.) The next day, the magistrate judge issued a Roseboro Order2 advising Petitioner of the
importance of the motion and his need to file an adequate response. (ECF No. 17.) Petitioner
filed a Response in Opposition to the motion on January 14, 2014. (ECF No. 24.) On July 14,
2014, the magistrate judge issued the Report, recommending the court grant Respondent’s
motion and deny the Petition. (ECF No. 27.)
The magistrate judge found Ground Three of the Petition to be procedurally barred, as it
was not raised during Petitioner’s PCR appeal proceedings. (ECF No. 27 at 9.) The magistrate
judge further found Petitioner had shown no facts explaining cause for having failed to raise the
issue, and had not presented facts showing a fundamental miscarriage of justice on the issue to
excuse the procedural bar. (Id. at 9-10.) Regarding Ground One, the magistrate judge found that
Petitioner’s claim was not cognizable for federal habeas corpus relief because Petitioner had a
“full and fair chance” to litigate the issue in state court. (Id. at 10.) On Ground Two, the
magistrate judge, upon review of the PCR court’s written opinion on the issue of ineffective
assistance of counsel, found that the state court did not unreasonably misapply the Strickland

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The order was entered in accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
which requires the court to provide an explanation of dismissal or summary judgment procedures
to pro se litigants.
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standard3 when it determined no Sixth Amendment violation had occurred. (Id. at 13-15.) The
PCR court found that although trial counsel had not preserved the issue of suppressing the drug
evidence via an objection, a “review of the evidence presented during the suppression hearing
and the thorough analysis of the issue by the trial judge establishes that the trial judge’s denial of
the motion to suppress was sound.” (Id. at 15.) The magistrate judge found that Petitioner can
demonstrate “no reasonable probability that the trial or direct appeal would have turned out
differently if trial counsel had renewed his objection to the entry of drug evidence in this case.”
(Id. at 16.) Finally, on Ground Four, the magistrate judge found that Petitioner has failed to
show that there was no reasonable basis for the trial court’s denial of Petitioner’s motion for a
directed verdict or the state appellate court’s dismissal of his appeal, and therefore Petitioner
cannot show those decisions were an objectively unreasonable application of the proper standard.
(Id. at 18-19.)
Petitioner timely filed his Objections to the Report on August 1, 2014. (ECF No. 29.)
STANDARD OF REVIEW
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 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 Matthews v. Weber, 423
U.S. 261, 270-71 (1976). This court is charged with making a de novo determination of those

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Strickland v. Washington, 466 U.S. 668, 687 (1984) (“A convicted defendant’s claim that
counsel’s assistance was so defective as to require reversal of a conviction… has two
components. First, the defendant must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show
that the deficient performance prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”)
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portions of the Report 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 recommit the matter with
instructions. See 28 U.S.C. § 636 (b)(1).
Objections to a Report and Recommendation must specifically identify portions of the
Report and the basis for those objections. Fed. R. Civ. P. 72(b). “[I]n 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 & Acc. Ins. Co., 416 F.3d 310, 316 (4th Cir. 2005)
(quoting Fed. R. Civ. P. 72 advisory committee’s note). Failure to timely file specific written
objections to a Report will result in a waiver of the right to appeal from an Order from the court
based upon the Report. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 155 (1985); Wright
v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir.
1984).

If the petitioner fails to properly object because the objections lack the requisite

specificity, then de novo review by the court is not required.
As Petitioner is a pro se litigant, the court is required to liberally construe his arguments.
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The court addresses those arguments
that, under the mandated liberal construction, it has reasonably found to state a claim. Barnett v.
Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999).
ANALYSIS
Grounds One and Two
Petitioner’s Objections to the portions of the Report regarding Grounds One and Two
lack the requisite specificity required by Federal Rule of Civil Procedure 72(b).

In his

Objections, Petitioner merely makes unsupported statements that he has not had a “full and fair”

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opportunity to litigate his Fourth Amendment claims and that it is “elementary” that his trial
counsel was ineffective. (See ECF No. 29.) Since Petitioner failed to properly object to the
Report with specificity, the court does not need to conduct a de novo review and 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.
The court does not find clear error and accepts the Report by the magistrate judge.
Petitioner disputes the magistrate judge’s finding that he had a full and fair opportunity to litigate
his Fourth Amendment claims in Ground One of his Petition, inquiring how the opportunity
could have been full and fair if the court “did not ‘resolve’ whether an illegal seizure had
occurred.” (ECF No. 29 at 2.) To support his assertion, Petitioner attached a highlighted excerpt
from the Report to his Objections, and cites to a section in which the magistrate judge quotes
verbatim, Petitioner’s own contentions in his Petition. (ECF No. 29-1 at 1.) Petitioner can offer
no supported facts to back up his assertion. To the contrary, the record shows that Petitioner
challenged the seizure via a motion in limine at trial and again in his direct appeal. (ECF No. 27
at 11.)

Simply because the issue was not resolved in Petitioner’s favor does not mean

Petitioner’s opportunity to challenge the seizure was not fair.
In addition, Petitioner repeatedly cites to the record to indicate that trial counsel failed to
object to the denial of a motion to suppress drug evidence, and therefore did not preserve the
issue for appeal. (ECF No. 29 at 4-6.) Trial counsel admitted to this fact in Petitioner’s PCR
proceedings. (ECF No. 27 at 14.) However, as the magistrate judge noted, the PCR court found
the trial judge’s denial of the motion to suppress to be sound and found no “reasonable
probability” that the result of the case or appeal would have been different had trial counsel
preserved the issue for appeal. (Id. at 15.) Petitioner offers no facts to dispute this conclusion.

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Grounds Three and Four
Petitioner offers no objection to the portions of the Report regarding Grounds Three or
Four of the Petition. 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. Furthermore, failure to file specific written objections to the Report results in a
party’s waiver of the right to appeal from the judgment of the District Court based upon such
recommendation.

28 U.S.C. § 636(b)(1); Thomas, 474 U.S. 140; Wright, 766 F.2d 841;

Schronce, 727 F.2d 91. Therefore, after a thorough and careful review of the Report and the
record regarding this issue, the court finds the Report provides an accurate summary of the facts
and law and adopts the magistrate judge’s recommendation.
CONCLUSION
Based on the aforementioned reasons and a thorough review of the Report of the
magistrate judge and the record in this case, the court ACCEPTS the Report of the magistrate
judge (ECF No. 27). It is therefore ordered that Respondent’s Motion for Summary Judgment
(ECF No. 16) is GRANTED and this Petition (ECF No. 1) is DENIED.
IT IS SO ORDERED.

United States District Judge
September 24, 2014
Columbia, South Carolina
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