Rolen v. Reynolds

Filing 28

ORDER adopting 25 Report and Recommendation. Respondent's 10 Motion for Summary Judgment is granted and Petitioner's § 2254 petition is dismissed with prejudice. Signed by Honorable Bruce Howe Hendricks on 2/16/2016. (mwal)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Craig Shane Rolen, #257993,

Civil Action No.: 0:15-cv-2045-BHH

Petitioner,
vs.
Opinion and Order
Cecilia Reynolds, Warden, Lee CI,
Respondent.

Petitioner, Craig Shane Rolen, (“Petitioner”), proceeding pro se, filed this
application for a 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(B)(2)(d), D.S.C., the action
was referred to United States Magistrate Judge Paige J. Gossett, for pretrial handling
and a Report and Recommendation (“Report”). Magistrate Judge Gossett recommends
that Respondent’s Motion for Summary Judgment be granted and Petitioner’s § 2254
petition be dismissed. (ECF No. 25.) 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
On May 18, 2015, Petitioner filed this action against Respondent alleging, inter
alia, ineffective assistance of trial counsel. On January 19, 2016, the Magistrate Judge
issued a Report; and on February 4, 2016, Petitioner filed his Objections. (ECF No.
27.) Having carefully reviewed the record, the Court finds that the Magistrate Judge
has accurately and adequately summarized the disputed and undisputed facts relevant

to this action. The Court has reviewed the objections, but finds them to be without
merit. Therefore, it will enter judgment accordingly.1
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to the district court. The
recommendation has no presumptive weight. The responsibility to make a final
determination remains with the district court. 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 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). 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).
In reviewing these pleadings, the Court is mindful of the petitioner’s pro se
status. When dealing with a pro se litigant, the Court is charged with liberal
construction of the pleadings. See, e.g., De’Lonta v. Angelone, 330 F.3d 630, 633 (4th
Cir. 2003). The requirement of a liberal construction does not mean, however, that the
Court can ignore a petitioner’s clear failure to allege facts that set forth a cognizable

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As always, the Court says only what is necessary to address Petitioner’s objections against the already
meaningful backdrop of a thorough Report of the Magistrate Judge, incorporated entirely by specific
reference, herein, to the degree not inconsistent. Exhaustive recitation of law and fact exists there.

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claim, or that the Court must assume the existence of a genuine issue of material fact
where none exists. See United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012).
DISCUSSION
The Magistrate Judge first found that Ground One fails to state a cognizable
§ 2254 claim and the Court agrees. Ground One alleges that the plea court abused its
discretion in denying Petitioner’s motion to withdraw his plea. (ECF No. 1 at 5.) As the
Magistrate Judge correctly stated, “[t]he decision to permit a defendant to withdraw his
plea invokes the trial court’s discretion, the abuse of which is not a basis for habeas
corpus relief.” (ECF No. 25 at 11 (citing Sinistaj v. Burt, 66 F.3d 804, 808 (6th Cir.
1995) (finding no authority for the proposition that a state court’s abuse of discretion in
denying a defendant’s motion to withdraw a waiver of jury trial violates the United
States Constitution); Pulley v. Harris, 465 U.S. 37, 41 (1984) (“A federal court may not
issue the writ on the basis of a perceived error of state law.”)).)
The Magistrate Judge then addressed Ground Two, which alleges that plea
counsel was ineffective for failing to object to comments made by the State during the
hearing in which Petitioner moved to withdraw his guilty plea. (ECF No. 1 at 7, 19–20.)
In her thorough twenty-four page Report, the Magistrate Judge engaged in a thoughtful
and comprehensive analysis of this claim, correctly finding that it failed on the merits.
(ECF No. 25 at 12–21.) She determined that the rulings of the state court were
reasonable and Petitioner failed to carry his burden of establishing counsel was
ineffective as required by Strickland v. Washington, 466 U.S. 886 (1984), and its
progeny. (Id. at 19–20.) She further found that, to the extent Petitioner argues his plea

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counsel should not have represented him in the hearing on his motion to withdraw his
plea since plea counsel had already been ineffective for failing to make such a motion
during Petitioner’s guilty plea proceedings, such a claim is procedurally barred. (Id. at
20–21.) As explained by the Magistrate Judge, this claim was not raised to or ruled
upon by the state court, Marlar v. State, 653 S.E.2d 266, 267 (S.C. 2007) (noting that
issues must be raised to and ruled on by the state court to be preserved for appellate
review), and, even if it had been, the claim is without merit. (Id.) The rulings of the state
court were reasonable regarding this claim and Petitioner failed to carry his burden of
establishing counsel was ineffective as required by Strickland and its progeny.
Finally, the Magistrate Judge found that Ground Three also fails on the merits
and the Court agrees. Ground Three alleges that trial counsel was ineffective for failing
to investigate and prepare for trial. (ECF No. 1 at 8.) After detailing the evidence in the
record and the state court’s findings on this claim, the Magistrate Judge correctly found
that the rulings of the state court were reasonable and Petitioner failed to carry his
burden of establishing counsel was ineffective as required by Strickland and its
progeny. (ECF No. 25 at 21–23.)
Petitioner’s brief objections consist of nothing more than arguments that the
Magistrate Judge has already considered and rejected. Thus, the Court is tasked only
with review of the Magistrate Judge’s conclusions for clear error. Because the Court
agrees with the cogent analysis by the Magistrate Judge, it need not discuss those
same issues for a second time here. Therefore, the Court will overrule Petitioner’s
objections.

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CONCLUSION
After a thorough review of the Report, the record, and the applicable law, the
Court finds that Petitioner’s objections are without merit. Accordingly, for the reasons
stated above and by the Magistrate Judge, the Court overrules Petitioner’s objections
and adopts the Report and incorporates it herein. It is therefore ORDERED that
Respondent’s motion for summary judgment (ECF No. 10) is GRANTED and
Petitioner’s § 2254 petition is DISMISSED with prejudice.
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 in 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. 2011).
In this case, the legal standard for the issuance of a certificate of appealability has not
been met. Therefore, a certificate of deniability is DENIED.
IT IS SO ORDERED.

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/s/ Bruce Howe Hendricks
United States District Judge
February 16, 2016
Greenville, South Carolina
*****

NOTICE OF RIGHT TO APPEAL
The parties are hereby notified that any right to appeal this Order is governed by
Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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