Middleton v. Warden, Lee Correctional Institution

Filing 70

ORDER adopting the Magistrate Judge's 30 Report, overruling Petitioner's 62 objections, granting Respondent's 9 motion for summary judgment, and denying a certificate of appealability. Signed by Honorable Bruce Howe Hendricks on 3/3/2023. (dist)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
George T. Middleton,

)
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Petitioner,
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v.
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Warden, Lee Correctional Institution,
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Respondent.
)
________________________________)

Civil Action No. 0:15-2757-BHH
ORDER

This matter is before the Court on Petitioner George T. Middleton’s pro se petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, which was filed on July 13, 2015.
On September 11, 2015, Respondent filed a motion for summary judgment, to which
Petitioner filed a response. In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil
Rule 73.02(B)(2)(d), D.S.C., the matter was referred to a United States Magistrate Judge
for initial review.
On June 28, 2016, Magistrate Judge Paige J. Gossett filed a Report and
Recommendation (“Report”) outlining the issues and recommending that the Court grant
Respondent’s motion for summary judgment. (ECF No. 30.) Attached to the Report was
a notice advising the parties of the right to file written objections to the Report within
fourteen days of being served with a copy. No objections were initially filed, and the Court
reviewed the matter for clear error and found none. Accordingly, the Court adopted the
Magistrate Judge’s Report on July 21, 2016. (ECF No. 34.)
On December 13, 2018, however, the Court received a motion to reopen the case
and a motion to appoint a guardian ad litem filed by Petitioner. (ECF Nos. 37 and 38.)
After reviewing the motions, the Court entered a text order granting the motion to reopen

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the case and taking under advisement Petitioner’s motion for the appointment of a guardian
ad litem. (ECF No. 39.) On January 15, 2019, the Court entered another text order
denying Petitioner’s motion to appoint a guardian ad litem, without prejudice, and granting
Petitioner sixty days to file objections to the Magistrate Judge’s Report. (ECF No. 45.) In
lieu of objections, however, the Court received another motion to appoint a guardian ad
litem and a supplement from Petitioner. (ECF Nos. 49 and 51.)
Ultimately, the Court appointed an attorney for Petitioner in accordance with 28
U.S.C. § 2254(h) and 18 U.S.C. § 3006A(2)(B) for the sole purpose of assisting Petitioner
with filing objections to the Magistrate Judge’s Report. (ECF No. 56.) The Court instructed
counsel to meet with Petitioner and file objections on or before January 13, 2023. Counsel
filed a motion for a brief extension of time, which the Court granted, and Petitioner’s
objections were filed on January 18, 2023. (ECF Nos. 61, 62, and 65.) Respondent filed
a reply to Petitioner’s objections, and the matter is ripe for review.
For the reasons set forth herein, the Court overrules Petitioner’s objections, affirms
the Magistrate Judge’s Report, and grants Respondent’s motion for summary judgment.
BACKGROUND
Petitioner was indicted in September of 2008 in Lexington County for distribution of
crack cocaine (3rd or subsequent offense) and was tried by a jury and convicted in May of
2009. Petitioner was sentenced to 21 years’ imprisonment and was fined $50,000.00. At
trial, Petitioner was represented by Wayne Floyd, Esq.
Petitioner appealed his conviction and sentence and was represented by Benjamin
Stitley, Esq., who filed a brief on Petitioner’s behalf raising the following issues:
I.

Did the Trial Court err when it allowed a tainted and potentially partial
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jury panel be used in the Appellant’s trial?
II.

Did the Trial Court err when it failed to grant the Appellant’s motion for
mistrial when the State’s witness deliberately stated that the Appellant
had a prior “booking photo?”

(ECF No. 10-6 at 2.) The South Carolina Court of Appeals affirmed Petitioner’s conviction
and sentence on July 21, 2011. State v. Middleton, No. 2011-UP-373 (S.C. Ct. App. July
21, 2011). (ECF No. 10-8.) The remittitur was issued on August 11, 2011 (ECF No. 10-9.)
On March 21, 2012, Petitioner filed a pro se application for post-conviction relief
(“PCR”), raising the following allegations of ineffective assistance of counsel: (1) counsel
failed to bring forth issues on seized items; (2) counsel failed to ask for a continuance to
appeal the issue of the tainted jury panel; and (3) counsel failed to explain a plea offer or
the consequences of a not guilty plea. Middleton v. South Carolina, 2012-CP-32-1282;
App. at 439-47. (ECF No. 10-2 at 190-98.) Petitioner thereafter filed an amended
application in which he additionally alleged that “counsel was ineffective when he failed to
object to the state[’]s presentation and proferred a statement regarding the use of cameras
in his drive way stating that such cameras situated [sic] proves he is a drug dealer.” (ECF
No. 10-2 at 199-208.) Petitioner again amended his application on August 21, 2013. (ECF
No. 10-2 at 209-12.) The PCR court held an evidentiary hearing on January 21, 2014, at
which Middleton appeared and testified and was represented by Charles Brooks, Esq. In
an order filed on March 13, 2014, the PCR court denied and dismissed with prejudice
Petitioner’s PCR application. (ECF No. 10-3 at 3.)
On appeal of the denial of his PCR application, Petitioner was represented by Tiffany
Butler, Esq., with the South Carolina Commission on Indigent Defense, who filed a petition
for a writ of certiorari presenting the following issue: “Whether trial counsel erred in failing
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to make a motion to exclude and to object to the evidence of the video surveillance system
located in Petitioner’s residence because this evidence invited a verdict on the improper
basis that Petitioner was a dangerous drug dealer?” (ECF No. 10-11 at 3.) On April 8,
2015, the South Carolina Supreme Court entered an order denying the petition for writ of
certiorari. (ECF No. 10-13.) The remittitur was issued on April 24, 2015. (ECF No. 10-14.)

On July 13, 2015, Petitioner filed the instant petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, raising the following issues, taken verbatim from his petition:
GROUND ONE: The state court created a manafest injustice when it
proceeded forward with balance of same jury members.
(a) Supporting facts [ ]:
The was all white and their was no black to the panel at all and their was a
high percentage of blacks in the surrounding community but none ever where
placed in the jury pool as to be picked. This was discrimination. Their was
no jury draw from a statistically correct cross section of that community. This
was purposefully orchestrated. The jury had only one section of the cross
section of this courts community.
GROUND TWO: The trial court erred in failing to grant motion for mistrial for
the jury was prejudiced by actions when he offer testimony about prior
booking photos.
(ECF No. 1 at 5, 7 (errors in original).)
STANDARDS OF REVIEW
I.

The Magistrate Judge’s Report
The Magistrate Judge makes only a recommendation to the Court.

The

recommendation has no presumptive weight, and the responsibility to make a final
determination remains with the Court. Mathews v. Weber, 423 U.S. 261 (1976). The Court
is charged with making a de novo determination only of those portions of the Report to

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which specific objections are made, and the Court may accept, reject, or modify, in whole
or in part, the recommendation of the Magistrate Judge, or recommit the matter to the
Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). In the absence of specific
objections, the Court reviews the matter only for clear error. See Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “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.’”) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
II.

Summary Judgment
To grant a motion for summary judgment, this Court must find that “there is no

genuine issue as to any material fact.” Fed. R. Civ. P. 56(c). The Court is not to weigh the
evidence, but rather to determine if there is a genuine issue of fact. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986). If no material factual disputes remain, then
summary judgment should be granted against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on
which the party bears the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
All evidence should be viewed in the light most favorable to the non-moving party. See
Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990).
DISCUSSION
I.

Habeas Corpus Relief
Because Petitioner filed his petition after the effective date of the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), review of his claims is governed by 28

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U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997); Breard v. Pruett,
134 F.3d 615 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas
corpus relief unless the underlying state adjudication
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court explained that §
2254(d)(1)’s “contrary to” and “unreasonable application” clauses have independent
meaning. Id. at 404-05. A federal habeas court may issue the writ under the “contrary to”
clause if the state court applies a rule different from the governing law set forth in
controlling cases, or if it decides a case differently than the Supreme Court has done on
a set of materially indistinguishable facts. Id. at 405-06. A federal habeas court may grant
relief under the “unreasonable application” clause if the state court correctly identifies the
governing legal principle from Supreme Court decisions but unreasonably applies it to the
facts of the particular case. Id. at 407-08. Factual determinations made by the state “shall
be presumed to be correct,” and “[t]he applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
II.

Exhaustion and Procedural Bar
Before a Petitioner can obtain relief under § 2254, he must first clear a series of

procedural hurdles. For example, a state prisoner must exhaust his state court remedies
by “present[ing] his claim to the state’s highest court” before a federal court can grant relief
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on the merits of a claim.1 Mahdi v. Stirling, 20 F.4th 846, 892 (4th Cir. 2021); Coleman v.
Thompson, 501 U.S. 722, 729-30 (1991). Thus, “[t]he exhaustion doctrine bars a claim if
it is raised for the first time in a federal habeas petition.” Mickens v. Taylor, 240 F.3d 348,
356 (4th Cir. 2001) (en banc); see also Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998).
In other words, to exhaust a federal habeas corpus claim, a petitioner must “fairly
present[ ] to the state court both the operative facts and the controlling legal principles
associated with each claim.” Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004)
(citation and internal quotation marks omitted). This means that a petition must present the
claim to the state court “face-up and squarely.” Id. Otherwise, the state will be deprived
of its “opportunity to correct the constitutional violation in the first instance.” Id. (internal
quotation marks omitted).
“A distinct but related limit on the scope of federal habeas review is the doctrine of
procedural default–often referred to as a procedural bar–one example of which occurs
‘when a habeas petitioner fails to exhaust available state remedies and the court to which
[he] would be required to present his claims in order to meet the exhaustion requirement
would now find the claims procedurally barred.” Mahdi, 20 F.4th at 892 (quoting Breard,
134 F.3d at 619) (internal quotation marks omitted). Another way procedural default occurs

1

The exhaustion requirement exists to promote comity within our federal system. As the Supreme
Court has explained:
Because “it would be unseemly in our dual system of government for a federal district court
to upstate a state court conviction without an opportunity to the state courts to correct a
constitutional violation,” federal courts apply the doctrine of comity, which “teaches that one
court should defer action on causes properly within its jurisdiction until the courts of another
sovereignty with concurrent powers, and already cognizant on the litigation, have had an
opportunity to pass upon the matter.”
Rose v. Lundy, 455 U.S. 509, 518 (1982) (quoting Darr v. Burford, 399 U.S. 200, 204 (1950)).

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is when “a state court clearly and expressly bases its dismissal of a habeas petitioner’s
claim on a state procedural rule, and that procedural rule provides an independent and
adequate ground for dismissal.” Breard, 134 F.3d at 619.
Nevertheless, because the requirement of exhaustion is not jurisdictional, in very
limited circumstances a federal court may consider claims that have not been presented
to the highest South Carolina court with jurisdiction. Granberry v. Greer, 481 U.S. 129, 131
(1989). Specifically, a federal court may review a procedurally defaulted claim if the
petitioner can demonstrate sufficient cause for the default and actual prejudice as a result
of the alleged violation of federal law, or demonstrate that failure to consider the claim
would result in a miscarriage of justice because the petitioner is actually innocent. Murray
v. Carrier, 477 U.S. 478, 495-96 (1986). “Cause” is defined as “some objective factor
external to the defense [that] impeded counsel’s efforts to comply with the State’s
procedural rule.” Strickler v. Greene, 527 U.S. 263, 283 n. 24 (1999) (quoting Murray, 477
U.S. at 488). A petitioner may prove cause if he can demonstrate ineffective assistance
of counsel relating to the default, show an external factor that hindered compliance with the
state procedural rule, or demonstrate the novelty of a particular claim. Murray, 477 U.S.
at 495-96. Absent a showing of cause, the court is not required to consider actual
prejudice. Turner v. Jabe, 58 F.3d 924, 931 (4th Cir. 1995). However, if a petitioner
demonstrates sufficient cause, he also must show actual prejudice in order to excuse a
default.

Murray, 477 U.S. at 492.

To show actual prejudice, the petitioner must

demonstrate more than plain error. A petitioner must show an actual and substantive
disadvantage as a result of the error, not merely the possibility of harm.
As an alternative to demonstrating cause for failure to raise a claim, a petitioner may
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show a miscarriage of justice. To demonstrate a miscarriage of justice, the petitioner must
show that he is actually innocent. See Murray, 477 U.S. at 496 (holding that a fundamental
miscarriage of justice occurs only in extraordinary cases, “where a constitutional violation
has probably resulted in the conviction of someone who is actually innocent”). Actual
innocence is defined as factual innocence, not legal innocence. Bousley v. United States,
523 U.S. 614, 623 (1998).
III.

Petitioner’s Claims and the Court’s Review
In her Report, the Magistrate Judge first considered ground one–Petitioner’s claim

related to the racial makeup of the jury–and agreed with Respondent that this ground is
procedurally barred from federal habeas review. Indeed, the Magistrate Judge noted that
Petitioner himself appeared to agree that the ground is procedurally barred based on his
concession that he “did not raise his first ground for relief on either direct or PCR appeal.”
(ECF No. 25 at 9.) In addition to finding that this ground was not properly presented to the
state appellate courts, the Magistrate Judge also explained that this ground would be
procedurally defaulted under independent and adequate state procedural rules if Petitioner
attempted to raise it now.
Next, with respect to Petitioner’s argument that he could establish cause for any
default based on his attorney’s errors, the Magistrate Judge explained that, to the extent
Petitioner may be referring to appellate counsel’s failure to present ground one on direct
appeal, “when an attorney’s failure to present an issue on direct appeal is offered as cause
for procedural default, it must have been exhausted as an independent claim in state court
before it may be used to establish cause for an exhausted claim.” (ECF No. 30 at 10.)
Because Petitioner did not properly exhaust any claim of ineffective assistance of direct
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appeal counsel, however, the Magistrate Judge found that Petitioner cannot demonstrate
cause in this regard. Likewise, the Magistrate Judge explained that, to the extent Petitioner
may be referring to PCR counsel, any errors of PCR counsel cannot generally serve as a
basis to excuse a petitioner’s procedural default of his claims.
Nevertheless, the Magistrate Judge examined Petitioner’s arguments in light of
Martinez v. Ryan, 132 S.Ct. 1309, 1319 (2012), where the Supreme Court held that
inadequate assistance of counsel “at initial-review collateral review proceedings may
establish cause for a prisoner’s procedural default of a claim of ineffective assistance at
trial.” Ultimately, however, the Magistrate Judge found that Petitioner failed to satisfy the
limited qualification established by Martinez because he is not seeking to excuse the
procedural default of an ineffective assistance of counsel claim. Rather, he is seeking to
establish cause to excuse default of claims alleging errors by the trial court. Accordingly,
the Magistrate Judge found that ground one is procedurally barred from federal habeas
review.
As to ground two–Petitioner’s claim that the trial court erred when it failed to grant
a mistrial after a testifying officer mentioned Petitioner’s prior booking photograph–the
Magistrate Judge noted that although this issue was raised on direct appeal to the South
Carolina Court of Appeals, Petitioner did not seek a petition for rehearing following the
denial of his appeal by the Court of Appeals and did not file a petition for a writ of certiorari
with the South Carolina Supreme Court. The Magistrate Judge also noted that this ground
was not raised to and ruled on by the PCR court, nor was it presented in his PCR appeal.
Nevertheless, the Magistrate Judge disagreed with Respondent that the ground was
procedurally barred in light of In re Exhaustion of State Remedies in Criminal and Post10

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Conviction Relief Cases, 471 S.E.2d 454 (S.C. 1990) (holding that “when the claim has
been presented to the Court of Appeals or the Supreme Court and relief has been denied,
then the litigant shall be deemed to have exhausted all available state remedies”).
Thus, the Magistrate Judge considered the merits of ground two, noting that the
South Carolina Court of Appeals found as follows with respect to this ground:
As to whether the trial court erred in denying Middleton’s motion for a mistrial
after a witness testified regarding Middleton’s prior booking photo: State v.
Culbreath, 377 S.C. 326, 331, 659 S.E.2d 268, 271 (Ct. App. 2008) (holding
the decision whether to grant or deny a mistrial motion is within the sound
discretion of the trial court, and the trial court’s decision will not be disturbed
on appeal absent an abuse of discretion amounting to an error of law); Id.
(stating a mistrial should not be granted unless absolutely necessary, and in
order to receive a mistrial the defendant must show error and resulting
prejudice); State v. Washington, 315 S.C. 108, 110, 432 S.E.2d 448, 449
(1992) (holding a witness’ reference to defendant’s “booking report” from a
previous arrest did not warrant a mistrial, where the reference was elicited by
defendant’s own counsel and was responsive to counsel’s questions).
State v. Middleton, No. 2011-UP-373, 2011 WL 11735018, *1 (S.C. Ct. App. July 21, 2011).
(ECF No. 10-8 at 2.)
Ultimately, the Magistrate Judge found that Petitioner failed to offer any argument
to demonstrate that the state’s decision was somehow “contrary to or involved an
unreasonable application of clearly established federal law as decided by the Supreme
Court of the United States,” or that the decision “was based on an unreasonable
determination of the facts in light of the evidence presented in the state court proceeding.”
28 U.S.C. § 2254(d)(1), (2). Accordingly, the Magistrate Judge found that Petitioner was
not entitled to relief on ground two.
Lastly, the Magistrate Judge also found that Petitioner failed to demonstrate the
standard for an evidentiary hearing in this matter.
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In his objections to the Report, ultimately filed with the assistance of court-appointed
counsel, Petitioner first asserts that the Magistrate Judge failed to liberally review the pro
se petition. Next, Petitioner asserts that his “competency to adequately assist his counsel
at trial and sentencing is glaringly obvious f[ro]m the record” based on Petitioner’s serious
health issues. (ECF No. 62 at 3.) Specifically, counsel for Petitioner writes:
No one has raised this obvious issue. The record reveals he was having
seizures/spasms at the state trial level. There is no indication that the state
trial court or counsel raised the issue of competency due to his severely
limited physical condition. It is obvious that his physical condition was
relevant to his mental capacity.
(ECF No. 62 at 3.) Counsel further objects that Petitioner should have been ordered to
undergo a competency evaluation and contends that Petitioner’s trial counsel was
ineffective for ignoring Petitioner’s condition.
Next in his objections, Petitioner asserts that the Magistrate Judge may have
misunderstood the standard of review, asserting that “[t]he Magistrate Judge’s discussion
suggests that the court believes the Richter standard can and should be applied in all cases
in which Section 2254(d) applies, rather than in the very limited circumstances (which are
not present here) in which the state court issues an unreasoned decision on the merits.”
(Id. at 4 (citing Wilson v. Sellers, 584 U.S. – (2018).) Additionally, Petitioner objects to the
Magistrate Judge’s denial of Petitioner’s request for an evidentiary hearing.
Lastly, Petitioner lists a number of specific objections to the Magistrate Judge’s
findings regarding the following:
(1) Trial counsel failed to properly argue and raise issues concerning the
seized items.
(2) Trial counsel failed to ask for a continuance, mistrial, or properly object
to the all white jury panel.
(3) Trial counsel failed to properly and fully explain the state’s plea offer of 5
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years to the petitioner.
(4) Trial counsel failed to properly and vigorously challenge the prosecution’s
reference to video cameras and how they demonstrated the defendant was
a drug dealer.
(5) Booking photos were improperly reference during the trial.
(6) The all white jury panel was in violation of the United States Constitution.
(ECF No. 62 at 5-6.) Counsel objects that Petitioner did not have the assistance of counsel
when he drafted his petition and asserts that Petitioner would have had greater ability to
develop the aforementioned issues if the Court liberally construed his petition and granted
a hearing on the issues.
After review, the Court finds no merit to any of Petitioner’s objections. First,
although the Court is certainly sympathetic to Petitioner’s circumstances and the physical
limitations he faces, the Court does not find that the Magistrate Judge failed to liberally
construe his petition. Rather, the Court agrees with Respondent that the Magistrate Judge
properly addressed the only two grounds raised by Petitioner, and liberal interpretation of
a petition does not permit the Court to raise new grounds that are not squarely presented.
In that vein, with respect to counsel’s assertion that Petitioner was not competent
to stand trial (and/or that trial counsel was ineffective for failing to raise the issue of
competency), this is a new issue that has never been presented at any stage of any of
Petitioner’s prior proceedings, and the Court thus finds that the issue is not properly before
it. Therefore, the Magistrate Judge did not err in failing to consider it.
Next, the Court disagrees with Petitioner that the Magistrate Judge misunderstood
the standard of review. Instead, the Court finds that the Magistrate Judge set forth the
correct standard and applied it appropriately. Thus, the Court overrules this objection.
The Court also overrules Petitioner’s objection to the dismissal of this action without
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an evidentiary hearing. As the Magistrate Judge properly explained, pursuant to 28 U.S.C.
§ 2254(e)(2), a district court “shall not hold an evidentiary hearing” “[i]f the applicant has
failed to develop the factual basis of a claim in State court proceedings” unless:
(A) the claim relies on-(i) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable; or
(ii) a factual predicate that could not have been previously discovered
through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and
convincing error that but for constitutional error, no reasonable factfinder
would have found the applicant guilty of the underlying offense.
28 U.S.C. § 2254(e)(2).
Here, the Court fully agrees with the Magistrate Judge that Petitioner has not
demonstrated that he satisfies any exception to the general rule that the Court shall not
hold an evidentiary hearing. See Shinn v. Ramirez, 142 S. Ct. 1718 (2021) (“In all but
these extraordinary cases, AEDPA ‘bars evidentiary hearings in federal habeas
proceedings initiated by state prisoners.’”) (quoting McQuiggin v. Perkins, 569 U.S. 383,
395 (2013)).
Furthermore, the Court overrules Petitioner’s list of specific objections related to
claims that are not properly before the Court. (ECF No. 62 at 5-6.) Indeed, the Court notes
that it would have been entirely improper for the Magistrate Judge to have considered the
listed issues that were not squarely presented in the petition, and the Court disagrees with
Petitioner that the Magistrate Judge somehow incorrectly viewed his petition in a narrow
and technical matter.
Lastly, the Court notes that nowhere in his objections does Petitioner point to any
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legal or factual errors in the Magistrate Judge’s actual findings as to the two grounds for
relief actually raised in the petition. In other words, Petitioner does not specifically object
to the Magistrate Judge’s finding that ground one was procedurally defaulted, or her finding
that Petitioner failed to show cause and prejudice to excuse the procedural default.
Likewise, Petitioner does not specifically object to the Magistrate Judge’s finding that
Petitioner failed to show that the state court’s decision as to ground two was contrary to or
involved an unreasonable application of federal law, or that it was based on an
unreasonable determination of the facts. Ultimately, after review (under both a clear error
and a de novo standard of review), the Court fully agrees with the Magistrate Judge’s
findings as to grounds one and two, and the Court specifically incorporates herein the
Magistrate Judge’s analysis set forth on pages 7 through 13 of her Report.
CONCLUSION
Based on the foregoing, it is ORDERED that Petitioner’s objections (ECF No. 62)
are overruled; the Magistrate Judge’s Report (ECF No. 30) is adopted; and Respondent’s
motion for summary judgment (ECF No. 9) is granted.
IT IS SO ORDERED.
/s/Bruce H. Hendricks
United States District Judge
March 3, 2023
Charleston, South Carolina
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.
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(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 the standard by demonstrating that reasonable
jurists would find this Court's assessment of his constitutional claims 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). Here, the Court finds that the legal
standard for the issuance of a certificate of appealability has not been met. Therefore, a
certificate of appealability is denied.

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