Sullivan v. Padula

Filing 78

ORDER RULING ON REPORT AND RECOMMENDATION. The Court adopts the Report and Recommendation 63 of the Magistrate Judge to the extent it is consistent with this Order. Respondents Motion for Summary Judgment 47 is GRANTED and the Petition for Habeas Corpus relief is DISMISSED. A certificate of appealability is denied. Signed by Honorable Mary G Lewis on 03/08/2013. (dsto, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Quentin Marquise Sullivan,

) Civil Action No.: 4:11-2045-MGL
Petitioner, )
)
v.
)
OPINION AND ORDER
)
Anthony Padula, Warden,
)
)
Respondent. )
__________________________________ )
On August 8, 2011, Petitioner Quentin Marquise Sullivan (“Petitioner”), an inmate
of the South Carolina Department of Corrections, filed a pro se Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254. (ECF No.1.) Respondent filed a Return and a
Motion for Summary Judgment on March 15, 2012. (ECF Nos. 46 & 47.) A Roseboro
Order done in accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) was
entered on March 16, 2012, and provided Petitioner with an explanation of
dismissal/summary judgment procedures. (ECF No. 48.) Petitioner filed no response in
opposition to the Motion for Summary Judgment. The case was referred to United States
Magistrate Judge Thomas E. Rogers, III, for pretrial handling and a Report and
Recommendation pursuant to the provisions of 28 U.S.C. § 636(b) and Local Rule 73.02
(B)(2)(c) for the District of South Carolina. The Magistrate Judge issued a Report and
Recommendation (“Report”) on December 18, 2012, recommending that the Respondent’s
Motion for Summary Judgment be granted and that Petitioner’s Petition for Writ of Habeas
Corpus be denied and the Petition dismissed without an evidentiary hearing. (ECF No. 63.)
For the reasons set forth herein, this Court adopts the Report and Recommendation and
Respondent’s Motion for Summary Judgment is GRANTED and the Petition for Habeas

Corpus relief is DISMISSED.
BACKGROUND AND PROCEDURAL HISTORY
The Report sets forth in detail the relevant facts and standards of law on this matter,
and the Court incorporates them and summarizes below in relevant part. Petitioner is
presently confined in the Lee Correctional Institution of the South Carolina Department of
Corrections (“SCDC”). Petitioner was indicted by the Greenville County Grand Jury in
October 2006 for armed robbery (2006-0S-23-9362, count 1); possession of a weapon
during the commission of a violent crime (2006-0S-23-9362, count 2); second-degree
burglary (violent) (2006-0S-23-9363); and two counts of kidnapping (2006-0S-23-9364,
-9365). He was represented by Daniel J. Farnsworth, Esquire (“Trial Counsel”) on these
charges and on October 31, 2007, he plead guilty before the Honorable Edward W. Miller
(“Trial Judge”). (ECF No. 46-1 at 3-21.) Judge Miller sentenced Petitioner to concurrent
sentences of twenty-five years imprisonment for armed robbery; five years for possession
of a weapon during the commission of a violent crime; fifteen years for second-degree
burglary (violent); and twenty-five years for each count of kidnapping. (ECF No. 46-1 at 2134.) Petitioner did not appeal his conviction or sentence. (ECF No. 46-1 at 38-39.)
Petitioner filed a pro se Post-Conviction Relief (“PCR”) application on May 23, 2008,
alleging ineffective assistance of counsel, involuntary guilty plea, and coercion and more
specifically stating that his “lawyer wrongfully advised him.” (ECF No. 46-1 at 35-40.) The
State filed its return on August 4, 2008. (ECF No. 46-1 at 43-49.) The Honorable John C.
Few (“PCR Judge”) held an evidentiary hearing on the matter on February 25, 2009. (ECF
No. 46-1 at 50-91.) Petitioner was represented at the hearing by Susannah C. Ross,

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Esquire (“PCR Counsel”). (ECF No. 46-1 at 50.) On July 14, 2009, Judge Few entered an
Order of Dismissal in which he denied the requested relief and dismissed the PCR
application with prejudice. In his Order of Dismissal, Judge Few addressed Petitioner’s
claims that: he entered an involuntary guilty plea; trial counsel was ineffective because
counsel did not consult with him about an appeal and perfect an appeal; and that trial
counsel was ineffective because counsel failed to properly investigate his case. (ECF No.
46-1 at 92-100.) Petitioner, through PCR Counsel, filed a notice of appeal on August 5,
2009. (ECF No. 46-3 at 1-4.) A Petition for Writ of Certiorari was filed on April 5, 2010, by
Appellate Defender Kathrine H. Hudgins (“PCR Appellate Counsel”) presenting the sole
question of error by the PCR judge in refusing to find counsel ineffective for failing to object
to the recommendation of a 25 year sentence when counsel had advised Petitioner that the
pleas were being entered without recommendation. (ECF No. 46-5 at 1-8.) The State’s
Return was filed on May 13, 2010. (ECF No. 46-6 at 1-10.) The South Carolina Supreme
Court issued an order denying the Petition for Writ of Certiorari on May 26, 2011. (ECF No.
46-7.) The Remittitur was sent to the Greenville County Clerk of Court on June 13, 2011.
(ECF No. 46-8.)
Petitioner filed the instant pro se Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2254 raising two grounds for relief: 1) failure to preserve issue for higher court as
the issue of trial counsel’s failure to object to the State’s recommendation was raised at the
PCR hearing but not ruled upon; and 2) trial counsel’s failure to object to plea
recommendation in light of counsel’s advice to Petitioner. (ECF No. 1 at 5-7.) The
Magistrate Judge considered these grounds in conjunction with the applicable law and the
undisputed facts. The Magistrate Judge noted that the first ground raised in the Petition
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was addressed by the court in an April 17, 2012, order denying Petitioner’s Motion to Stay
his federal habeas corpus petition so that he could return to state court to exhaust the issue
of ineffective assistance of counsel. (ECF Nos. 44 & 53.) Thus, the Magistrate Judge
correctly focused his attention on the second ground raised in the Petition. Further, this
Court has addressed remaining aspects of Ground One of the Petition below in response
to Petitioner’s objections.
As noted by the Magistrate Judge, in Ground Two, Petitioner argues that counsel
was ineffective for failing to object to the plea recommendation given by the Solicitor when
he had advised Petitioner that the pleas were “straight up” and would be entered without
recommendation. Petitioner contends that after he was told there was no recommendation
as to a sentence, the Solicitor recommended a 25 year sentence to the court and Trial
Counsel did not object. Respondent contends that this issue was raised at the PCR
hearing but not ruled by the PCR Judge such that it is procedurally barred from habeas
review. (ECF No. 46 at 6-8.) The Magistrate Judge found that Petitioner’s failure to request
a ruling on this specific issue in the PCR Order of Dismissal pursuant to Rule 59(e) of the
South Carolina Rules of Civil Procedure results in a procedural bar in accordance with
Marlar v. State, 375 S.C. 407, 653 S.E.2d 266 (S.C. 2007) and Coleman v. Thompson, 501
U.S. 722 (1991). The Magistrate Judge further concluded that Petitioner’s claims would
be subject to dismissal on the merits as Petitioner failed to prove error or prejudice as
required by Strickland v. Washington, 466 U.S. 688 (1984). Accordingly, the Magistrate
Judge recommends that Respondent’s Motion for Summary Judgment be granted and that
the Petition for Writ of Habeas Corpus be denied. (ECF No. 63.)

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STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to this Court.
recommendation has no presumptive weight.

The

The responsibility for making a final

determination remains with this Court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The
Court is charged with making a de novo determination of any portions of the Report and
Recommendation to which a specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation made by the Magistrate Judge or may
recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).
PRO SE PETITIONS
Pro se complaints and petitions should be construed liberally by this Court. Such
pro se complaints and petitions are held to a less stringent standard than those drafted by
attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.1978), cert. denied, 439 U.S.
970 (1978). A federal district court is charged with liberally construing a complaint or
petition filed by a pro se litigant to allow the development of a potentially meritorious case.
Hughes v. Rowe, 449 U.S. 5, 9 (1980). Liberal construction, however, does not mean that
the court can ignore a clear failure in the pleading to allege facts that set forth a claim
cognizable in a federal district court. Weller v. Dep’t of Soc. Serv., 901 F.2d 387, 390-91
(4th Cir.1990).
DISCUSSION
Petitioner filed written objections to the Magistrate Judge’s Report and
Recommendation and the Court has considered them fully. (ECF No. 65.) The Court also
granted Petitioner two extensions of time in which to file supplemental objections to the

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Report. (ECF Nos. 68 & 73.) Having received no further objections, the matter is ripe for
review. Petitioner generally claims that the Magistrate Judge failed to properly address
both grounds of his federal habeas petition1 and then states several more specific
objections concerning the Magistrate Judge’s treatment of the Petition. (ECF No. 65 at 1.)
As a first issue, Plaintiff raises an objection to the Magistrate Judge’s analysis on pages 1011 of the Report, claiming that both grounds are clear on the record. (ECF No. 65 at 2.)
Petitioner then acknowledges that the issue of whether Trial Counsel was ineffective for
failing to object to the recommendation of a 25 year sentence when counsel advised
Petitioner that the pleas were to be entered without recommendation was not preserved
for federal review. (ECF No. 65 at 2.) Petitioner argues that PCR Counsel failed to ensure
that all issues were ruled upon by the PCR Judge which subsequently caused Ground Two
of his habeas petition to be barred.

(ECF No. 65 at 2-3.)

Petitioner attached

correspondence received from PCR Counsel which indicated that she intended to ensure
that the final PCR order ruled on all issues presented at the hearing. (ECF No. 65 at 4-5.)
As noted, Plaintiff admits that he is procedurally barred from raising the failure to
object issue in his federal habeas petition but asks that this Court reopen the record for a
ruling on Ground Two of his Petition. (ECF No. 65 at 3.) To summarize Petitioner’s
objection, Petitioner seemingly claims that his PCR Counsel was also ineffective. This,
however, is not a proper basis for a § 2254 petition and to the extent Petitioner attempts
to raise a free-standing claim, in the instant habeas action, that his PCR Counsel was

1

A “‘specific written objection’” is needed to trigger review by this Court. See
Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 316 (4th Cir. 2005); see also
Ford v. Reynolds, No. 3:11-67, 2011 WL 2581397, * 2 (D.S.C. 2011).
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ineffective, that claim is not cognizable here. See 28 U.S.C. § 2254(I) (“The ineffectiveness
or incompetence of counsel during Federal or State collateral post-conviction proceedings
shall not be a ground for relief in a proceeding arising under section 2254.”).
To the extent Petitioner claims that Martinez v. Ryan, —U.S.—, 132 S.Ct. 1309
(2012) allows him to overcome his procedural default, the Court will address the issue here.
On March 20, 2012, the United States Supreme Court decided the case of Martinez v.
Ryan and considered “whether a federal habeas court may excuse a procedural default on
an ineffective-assistance claim when the claim was not properly presented in state court
due to an attorney’s errors in an initial-review collateral proceeding.” Martinez, 132 S.Ct.
at 1313. Stated in other terms, the precise question at issue in Martinez was: “whether
ineffective assistance in an initial-review collateral proceeding2 on a claim of ineffective
assistance at trial may provide cause for a procedural default in a federal habeas
proceeding.” Martinez, 132 S.Ct. at 1315. The Supreme Court addressed this issue in
light of its holding under Coleman v. Thompson, 501 U.S. 722 (1991) which set forth a
general rule that there is no constitutional right to counsel in collateral proceedings, and
therefore, an attorney’s errors in the proceeding do not establish cause for a procedural
default. Revisiting the broad pronouncement made in Coleman, the Martinez Supreme
Court declared that its opinion “qualifies Coleman by recognizing a narrow exception:
Inadequate assistance of counsel at initial-review collateral proceedings may establish
cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.”

2

Martinez defines an initial-review collateral proceeding as “collateral proceedings
which provide the first occasion to raise a claim of ineffective assistance at trial.”
Martinez, 132 S.Ct. at 1315. The PCR hearing at issue here would be one such
example.
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Martinez, 132 S.Ct. at 1315 (emphasis added). In Martinez, the Supreme Court held that
“where, under state law, claims of ineffective assistance of trial counsel must be raised in
an initial-review collateral proceeding, a procedural default will not bar a federal habeas
court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review
collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.”
Martinez, 132 S.Ct. at 1320. More to the point, “a prisoner may establish cause for a
default of an ineffective-assistance claim . . . where appointed counsel in the initial-review
collateral proceeding, where the claim should have been raised, was ineffective under the
standards of Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984).” See Martinez, 132 S.Ct. at 1318. “To overcome the default, a prisoner must also
demonstrate that the underlying ineffective-assistance-of-trial counsel claim is a substantial
one, which is to say that the prisoner must demonstrate that the claim has some merit.”
Id. at 1318. Although Martinez does not give Petitioner a § 2254 “ground for relief” to
assert, “it does not stop [Petitioner] from using it to establish ‘cause’” on equitable grounds.
Id. at 1320. Thus, Martinez creates a narrow equitable ruling, not a constitutional ruling,
whereby a prisoner can establish cause for a procedural default.
In accordance with Martinez, this Court now considers whether cause existed to
overcome the procedural default of Petitioner’s claims of ineffective assistance of trial
counsel. As noted above, “a prisoner may establish cause for a default of an ineffectiveassistance claim . . . where appointed counsel in the initial-review collateral proceeding,
where the claim should have been raised, was ineffective under the standards of Strickland
v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” S ee Martinez, 132
S.Ct. at 1318 (emphasis added). Here, the ineffective assistance of counsel claim at issue
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was in fact raised generally in Petitioner’s PCR application and raised more pointedly at the
PCR hearing. Trial counsel’s failure to object, however, was not ruled upon by the PCR
Court and was not raised in a Rule 59(e) motion pursuant to the South Carolina Rules of
Civil Procedure.3 Without addressing whether Petitioner’s claims were “properly presented”
in the state court as part of the initial-review collateral proceeding, the Court finds that
Petitioner’s claims are still subject to dismissal because he cannot meet the standards of
Strickland. See generally Martinez, 132 S.Ct. at 1313.
To successfully challenge a conviction or sentence on the basis of ineffective
assistance of counsel, Petitioner must show that the counsel’s “representation fell below
an objective standard of reasonableness,” and that he was prejudiced by his counsel’s
deficient performance. See Strickland v. Washington, 466 U.S. 668, 687–88 (1984).
Judicial scrutiny of counsel’s performance is highly deferential because “it is all too
tempting for a defendant to second-guess counsel’s assistance after conviction or adverse
sentence. . . .” Id. at 689. Thus, “every effort must be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and
to evaluate the conduct from counsel’s perspective at the time.” Id. There is, therefore,“a
strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. Petitioner must demonstrate a “reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been

3

If the PCR court fails to address a claim as is required by S.C.Code Ann.
§ 17–27–80, counsel for the petitioner must make a motion to alter or amend the
judgment pursuant to Rule 59(e) of the South Carolina Rules of Civil Procedure. Failure
to do so will result in the application of a procedural bar by the South Carolina Supreme
Court. Marlar v. State, 375 S.C. 407, 653 S.E.2d 266 (S.C. 2007).
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different.” Id. at 694. To meet the prejudice requirement on review of a guilty plea, the
“defendant must show that there is a reasonable probability that, but for counsel’s errors,
he would not have pleaded guilty and would have insisted on going to trial.” Hill v.
Lockhart, 474 U.S. 52, 59 (1985). “Moreover, to obtain relief on this type of claim, a
petitioner must convince the court that a decision to reject the plea bargain would have
been rational under the circumstances.” Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473,
1485 (2010). “The challenger’s subjective preferences, therefore, are not dispositive; what
matters is whether proceeding to trial would have been objectively reasonable in light of all
of the facts.” United States v. Fugit, 703 F.3d 248, 260 (4th Cir. 2012).
The Magistrate Judge addressed Petitioner’s claims in light of the Strickland
standard. He concluded that, even assuming that Petitioner’s counsel committed error with
respect to failing to object to the Solicitor’s recommendation, Petitioner has failed to show
prejudice. (ECF No. 63 at 13.) The Magistrate Judge noted that Petitioner was in court at
the time the Solicitor stated there was a recommendation of 25 years4 and that Petitioner
signed sentencing sheets stating there was a recommendation by the State. (ECF No. 63

4

Petitioner objects to the Magistrate Judge’s conclusion that Petitioner did not
object to the Solicitor’s statement. (ECF No. 65 at 9.) This Court has reviewed the
plea colloquy in its totality. Although Petitioner did indicate that he did not understand
the recommendation and its ramification in its entirety, the Trial Judge subsequently
explained the recommendation and its significance. Petitioner then stated that he
understood the recommendation. (ECF No. 46-1 at 17.) The hearing continued and
before he was sentenced, Petitioner indicated that he desired the Judge to “go for it . . .”
without “tear[ing] his head in half.” (ECF No. 46-1 at 20.) From the record, it appears
clear that Petitioner had a full understanding of the consequences of his plea and the
charges made against him. He only hoped that the Trial Judge would issue a light
sentence. This does not create a basis for Petitioner to later argue that his plea was
invalid. See Blackledge v. Allison, 431 U.S. 63 (1997); Roddy v. State, 339 S.C. 29, 36,
528 S.E.2d 418 (S.C. 2000).
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at 13.) The Magistrate Judge also stated that Petitioner failed to object to the Solicitor’s
statement. Further, by Petitioner’s own admission, he was aware that if he went to trial and
lost, he could face a possible life sentence in prison. (ECF No. 46-1 at 67-68.) Yet,
Petitioner indicates that he would not have plead guilty if he knew the Solicitor would
recommend 25 years. (ECF No. 65 at 10.) Even if this statement is subjectively true, the
decision to go to trial would not have been objectively reasonable given that Petitioner was
aware that he was facing a maximum possible sentence of 110 years on the charges.
(ECF No. 46-1 at 7-10, 69-70.)
The Court agrees that Petitioner has not satisfied the prongs of Strickland, and
therefore, Martinez does not aid Petitioner because the underlying ineffective assistance
of counsel claim has no merit. Specifically, the Court finds that Petitioner has failed to
demonstrate any prejudice as a result of counsel’s alleged errors. Because the Court finds
that Petitioner has failed to demonstrate the requisite prejudice to prevail on his claims of
ineffective assistance of counsel, the Court need not address whether counsel’s
performance was deficient. Strickland, 466 U.S. at 697 (noting that the “court need not
determine whether counsel’s performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies.”).
Finally, to the extent Petitioner argues that PCR Counsel was ineffective for failing
to file the Rule 59(e) motion (ECF No. 65 at 3), the Court notes that this argument was not
raised on PCR appeal by Petitioner’s PCR Appellate Counsel, the South Carolina Office
of Appellate Defense (ECF No. 46-5 at 1-8 ), and is therefore procedurally barred.5 See

5

The sole issue raised in the PCR appeal is whether the “PCR judge err[ed] in
refusing to find counsel ineffective for not objecting when the State recommended a 25
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Smith v. Murray, 477 U.S. 527, 533 (1986) (stating that procedural bar of a constitutional
claim in an earlier state proceeding forecloses consideration by federal courts); see also
Windley v. Padula, No. 1:11-2304-TMC, 2012 WL 4478388, at *3 (2012). The Magistrate
Judge set forth the standards on the doctrines of exhaustion and procedural bypass which
are applicable on this issue. (ECF No. 63 at 5-7.) In South Carolina, “[e]xhaustion includes
filing of an application, the rendering of an order adjudicating the issues, and petitioning for,
or knowingly waiving, appellate review.” Gibson v. State, 329 S.C. 37, 42, 495 S.E.2d 426
(S.C. 1998). Generally, pursuant to the exhaustion doctrine, a habeas petitioner will be
procedurally barred from bringing a federal habeas claim if the claim has not first been
presented to the state’s highest court with authority to decide the issue. See 28 U.S.C.
§2254. Procedural bypass, otherwise referred to as procedural bar or procedural default,
is the doctrine applied when a petitioner seeks habeas relief based on an issue he failed
to raise at the appropriate time in state court, removing any further means of bringing that
issue before the state courts. In this instance, the petitioner has bypassed his state
remedies and is therefore procedurally barred from raising the issue in his federal habeas
petition. See Smith v. Murray, 477 U.S. 527, 533 (1986). A federal court has jurisdiction
to consider procedurally barred habeas claims upon a showing of: (1) “‘cause’ for
noncompliance with the state rule” and (2) “‘actual prejudice resulting from the alleged
constitutional violation.’” Smith, 477 U.S. at 533 (quoting Wainwright v. Sykes, 433 U.S.
72, 84 (1977)). When a petitioner has failed to comply with state procedural requirements

year sentence but counsel advised Petitioner that pleas were being entered without
recommendation.” (ECF No. 46-5 at 3.) In the brief argument, at most, PCR Appellate
Counsel only challenges the effectiveness of Petitioner’s Trial Counsel in the context of
challenging Petitioner’s guilty plea. (ECF No. 46-5 at 5-6.)
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and cannot make the required showing of cause and prejudice, the federal courts generally
decline to hear the claim. Murray v. Carrier, 477 U.S. 478, 496 (1986). Here, as evidenced
by the discussion above, Petitioner has not shown sufficient cause or prejudice to excuse
his default concerning the ineffectiveness of PCR counsel. He has not argued that his PCR
Appellate Counsel was ineffective for failing to raise this issue on PCR appeal and does not
otherwise state any cause for the procedural default of the claim that PCR counsel was
ineffective for failing to file a Rule 59(e) motion. Petitioner has also made no demonstration
of a miscarriage of justice, e.g., actual innocence, in the alternative. See Bousley v. United
States, 523 U.S. 614, 622 (1998).
CONCLUSION
The Court has reviewed the Magistrate Judge’s Report, Petitioner’s objections, and
the record and has conducted a de novo review of the issues raised in this case. The
Court is satisfied that the Magistrate Judge rightly determined that Petitioner has no claim
for relief under § 2254 in light of the applicable law. Based on the forgoing, the Court
adopts the Report and Recommendation of the Magistrate Judge to the extent it is
consistent with this Order. Petitioner’s objections are overruled. For the reasons set forth
herein and in the Report of the Magistrate Judge, Respondent’s Motion for Summary
Judgment is GRANTED and the Petition for Habeas Corpus relief is DISMISSED. The
Court is in receipt of Petitioner’s letter to the Court requesting another extension of time to
file an amendment to his objections. This request was docketed on March 6, 2013. (ECF
No. 77.) Petitioner filed objections (ECF No. 65), which this Court fully considered. This
Court also granted Petitioner’s two previous requests for extensions to file an amendment

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to his objections. Because Petitioner has been afforded sufficient time to respond to the
Report and Recommendation, Petitioner’s third request is DENIED.
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 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, 123 S.Ct. 1029, 154
L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d
542 (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. Therefore, a
certificate of appealability is denied.
IT IS SO ORDERED.
/s/Mary G. Lewis
United States District Judge
March _8, 2013
Spartanburg, South Carolina

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