Gambrell v. SC, State of

Filing 12

ORDER adopting 8 Report and Recommendation of Magistrate Judge Mary Gordon Baker. It is therefore ORDERED that Petitioner's Petition (ECF No. 1 ) is DISMISSED without prejudice and without issuance and service of process. It is further ORDERED that a certificate of appealability is DENIED. Signed by Honorable J Michelle Childs on 4/13/2017.(ssam, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION

Johnny Ray Gambrell, #145560,

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Petitioner,
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v.
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Warden of Broad River Correctional
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Institution,
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Respondent.
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____________________________________)

Civil Case No. 2:16-cv-00640-JMC

ORDER

Pro se Johnny Ray Gambrell (“Petitioner”), a state prisoner incarcerated at Broad River
Correctional Institution in South Carolina, filed a Petition for Writ of Habeas Corpus pursuant to
28 U.S.C. § 2254 (“Petition”) on February 25, 2016. Petitioner’s Petition states that the State trial
court erroneously considered “someone else’s records” when it reviewed his application for PCR
relief. (ECF No. 1.) In 2006, Petitioner was convicted and sentenced to life imprisonment for
murdering his wife. (ECF No. 8 at 2.) On direct appeal, Petitioner was represented by Counsel
and his conviction was affirmed on January 22, 2008. Id. Petitioner’s request for rehearing was
denied on April 18, 2008; Remittur was issued on May 23, 2008. Id. On November 24, 2008,
Petitioner filed a post-conviction relief (“PCR”) application in State court; Petitioner’s Counsel
filed an amended application. The State court denied Petitioner’s PCR relief application on
November 10, 2010. Petitioner filed a Petition for Writ of Certiorari. On July 24, 2013, the South
Carolina Court of Appeals denied certiorari.
On October 24, 2013, Petitioner filed a pro se Petition for Writ of Habeas Corpus pursuant
to 28 U.S.C. § 2254 in this court. In Petitioner’s petition, he alleged several violations during his
criminal trial, including failure to grant a directed verdict, failure to grant a mistrial, ineffective
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assistance of counsel on various grounds, failure to strike two jurors for cause, and conflict of
interest. On January 21, 2015, the court dismissed Petitioner’s Petition for Writ of Habeas Corpus
with prejudice. Gambrell v. Warden, Case No. 2:13-cv-2911-JMC-WWD, 2015 WL 268790
(D.S.C. Jan. 21, 2015) at ECF 46.

On February 6, 2015, Petitioner filed a Motion for

Reconsideration. Id. at ECF 49. Petitioner merely reiterates arguments already addressed, and
attempts to bring forth new claims not addressed in his Petition for Writ of Habeas Corpus. Id. at
ECF No. 59 at 3. Petitioner reiterates his claim of ineffective assistance of trial Counsel and a
claim for ineffective assistance of post-conviction relief Counsel for the first time. Petitioner
further asserts the State failed to sustain its burden of proof or prove there are no genuine issues
of material fact in his Petition for Writ of Habeas Corpus. Id. The court finds that Petitioner argued
no change in the controlling law, no new evidence or facts that were unavailable to him at trial,
and no clear error of law or manifest injustice to support altering or amending the judgment of the
court. Id. at ECF No. 59 at 4.
The Magistrate Judge’s Report and Recommendation, filed on March 4, 2016, recommends
that Petitioner’s Petition (ECF No. 1) be summarily dismissed without prejudice, and without
issuance and service of process. (ECF No. 8.) 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. Mathews v. Weber, 423 U.S.
261, 270-71 (1976). The court is charged with making a de novo determination of those portions

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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 recommit
the matter with instructions. See 28 U.S.C. § 636(b)(1).
Petitioner was advised of his right to file objections to the Report and Recommendation
(ECF No. 8 at 7.) However, Petitioner filed no objections to the Report and Recommendation. In
the absence of objections to the Magistrate Judge’s Report and Recommendation, this court is not
required to provide an explanation for adopting the recommendation. 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 v. Colonial Life & Acc.
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
Furthermore, failure to file specific written objections to the Report and Recommendation 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 v. Arn, 474 U.S. 140 (1985); Wright v. Collins,
766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).
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 and incorporates it herein.
(ECF No. 8.) It is therefore ORDERED that Petitioner’s Petition (ECF No. 1) is DISMISSED
without prejudice and without issuance and service of process. It is further ORDERED that a
certificate of appealability is DENIED.

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Certificate of Appealability
The law governing certificates of appealability 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.
IT IS SO ORDERED.

United States District Judge
April 13, 2017
Columbia, South Carolina

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