Perry v. Kendall

Filing 45

ORDER adopting Report and Recommendations re 26 Motion for Summary Judgment and dismissing 1 petition for Writ of Habeas Corpus. Signed by Chief Judge David C Norton on 10/14/11.(juwo, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
IKEISHA PERRY,
#282078,

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Petitioner,
vs.
CATHERINE KENDALL, WARDEN,
LEATH CORRECTIONAL,
Respondent.

No. 4:11-CV-434-DCN-TER

ORDER

The above referenced case is before this court upon the magistrate judge's
recommendation that the petition made under 28 U.S.C. § 2254 be dismissed as
barred by the statute of limitations, and, in the alternative, respondent’s motion for
summary judgment be granted and the petition dismissed.
This court is charged with conducting a de novo review of any portion of the
magistrate judge's report to which specific, written objections are made, and may
accept, reject, or modify, in whole or in part, the recommendations contained in that
report. 28 U.S.C. § 636(b)(1). The recommendation of the magistrate judge carries
no presumptive weight, and the responsibility to make a final determination rests with
this court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). A party’s failure to
object is accepted as agreement with the conclusions of the magistrate judge. See
Thomas v. Arn, 474 U.S. 140, 149-50 (1985). Additionally, any party who fails to
file timely, written objections to the magistrate judge's report pursuant to 28 U.S.C. §
636(b)(1) waives the right to raise those objections at the appellate court level.
United States v. Schronce, 727 F.2d 91, 93-94 (4th Cir. 1984). Objections to the
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magistrate judge’s report and recommendation were timely filed on October 3, 2011,
when petitioner delivered her objections to prison authorities for mailing to the
district court clerk. See Lewis v. Richmond City Police Dep’t, 947 F.2d 733, 734
(4th Cir. 1991).
The court adds the following discussion based on recent Supreme Court
decisions that shed light on the proper adjudication of federal habeas petitions filed
pursuant to 28 U.S.C. § 2254. These cases mandate a doubly deferential standard of
review when analyzing a state court’s resolution on the merits of a constitutional
ineffective assistance of counsel claim made under Strickland v. Washington.
In accordance with the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, federal courts may only grant habeas
corpus relief under 28 U.S.C. § 2254 if the state court’s decision was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court,” or “was based on an unreasonable determination
of the facts in light of evidence presented in the State court proceeding.” 28 U.S.C. §
2254(d)(1)-(2). Courts afford deference under AEDPA to state courts’ resolutions of
the habeas claims of state prisoners. See Bell v. Cone, 543 U.S. 447, 455 (2005). To
obtain habeas relief from a federal court, “a state prisoner must show that the state
court's ruling on the claim being presented in federal court was so lacking in
justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 131
S. Ct. 770, 786-87 (2011). “[E]ven a strong case for relief does not mean the state

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court’s contrary conclusion was unreasonable.” Id. at 786. “If this standard is
difficult to meet, that is because it was meant to be.” Id.
The Sixth Amendment provides the right to effective assistance of counsel. In
Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court announced a twopart test for adjudicating ineffective assistance of counsel claims. First, a petitioner
must show that counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms. Id. at 687. Next, the petitioner
must show that this deficiency prejudiced the defense. Id. at 694. The Supreme
Court has recently elaborated on the interplay between Strickland and § 2254, noting
that the standards are “both highly deferential,” and “when the two apply in tandem,
review is doubly so.”1 Harrington, 131 S. Ct at 788 (internal quotation marks
omitted); Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011); Johnson v. Secretary,
DOC, 643 F.3d 907, 911 (11th Cir. 2011) (“Double deference is doubly difficult for a
petitioner to overcome, and it will be a rare case in which an ineffective assistance of
counsel claim that was denied on the merits in state court is found to merit relief in a
federal habeas proceeding.”).
Therefore, when an ineffective assistance of counsel claim is raised in a §
2254 habeas petition and was denied on the merits by a state court, “[t]he pivotal
question is whether the state court's application of the Strickland standard was
unreasonable,” not “whether defense counsel's performance fell below Strickland’s
standard.” Harrington, 131 S. Ct. at 785. “For purposes of § 2254(d)(1), ‘an

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Notably, the Supreme Court also held for the first time this year that federal habeas review under 28
U.S.C. § 2254(d)(1) is limited to the record before the state court that adjudicated the claim on the
merits. Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011). “[R]eview under § 2254(d)(1) focuses on
what a state court knew and did.” Id. at 1399.

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unreasonable application of federal law is different from an incorrect application of
federal law.’” Id. (citing Williams, 529 U.S. at 410). “A state court must be granted
a deference and latitude that are not in operation when the case involves review under
the Strickland standard itself.” Id.
A de novo review of the record in this case indicates that the magistrate
judge's report accurately summarizes the case and applicable law. Accordingly, the
magistrate judge’s report and recommendation is ADOPTED, and the petition is
DISMISSED.
IT IS FURTHER ORDERED that a certificate of appealability is denied
because petitioner has failed to make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(b)(2).
AND IT IS SO ORDERED.

________________________________________
DAVID C. NORTON
CHIEF UNITED STATES DISTRICT JUDGE
October 14, 2011
Charleston, 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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