Moses v. McFadden

Filing 37

ORDER RULING ON REPORT AND RECOMMENDATION: The Court overrules Petitioner's objections and adopts and incorporates by reference the R & R [ECF No. 14]. Respondent's motion for summary judgment [ECF No. 8] is GRANTED and the petition is DISMISSED. Signed by Honorable R Bryan Harwell on 06/24/2015. (dsto, )

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
George Napoleon Moses, #103370, )
a/k/a George N. Moses,
)
)
Petitioner,
)
)
v.
)
)
Warden Joseph McFadden,
)
)
Respondent.
)
______________________________)

Civil Action No.: 4:14-cv-2894-RBH

ORDER

Petitioner George Napoleon Moses, a state prisoner proceeding pro se, filed a petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254 on July 21, 2014. See Pet., ECF No. 1. Petitioner is
currently incarcerated at Lieber Correctional Institution in Ridgeville, South Carolina. See id. at 1. On
October 17, 2014, Respondent filed a motion for summary judgment and a return and memorandum
in support. See ECF Nos. 8–9. Petitioner timely filed a response in opposition to Respondent’s motion
for summary judgment. See Pet.’s Resp., ECF No. 12. The matter is now before the Court for review
of the Report and Recommendation (R & R) of United States Magistrate Judge Thomas E. Rogers, III,
filed January 23, 2015.1 See R & R, ECF No. 14. The Magistrate Judge recommends the Court grant
Respondent’s motion for summary judgment and dismiss the petition without an evidentiary hearing.
See id. at 23. Petitioner timely filed objections to the R & R. See Pet.’s Objections, ECF No. 30.
For the reasons stated below, this Court adopts the Magistrate Judge’s R & R and grants
Respondent’s motion.
BACKGROUND
The Magistrate Judge thoroughly discussed the procedural background of this case in his R &
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This matter was referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(c),
D.S.C.

R with citations to the record. See R & R, ECF No. 14 at 2–7. Respondent did not file any objections
to the R & R, and Petitioner does not dispute the procedural history within his objections to the R &
R. Accordingly, finding no clear error, the Court adopts the procedural history as set forth in the R &
R.
In his petition, Petitioner raised two grounds for relief. See Pet., ECF No. 1 at 5, 7. Respondent
agreed that Petitioner properly exhausted his state remedies for both grounds as required by 28 U.S.C.
§ 2254(b)(1)(A), and that both grounds were ripe for determination in federal court. See ECF No. 9
at 7–8. The two grounds and supporting facts on which Petitioner asserts he is entitled to a writ of
habeas corpus are as follows:
Ground One: Violation of Petitione[r’s] Fifth, Sixth and
Fourteenth Ame[ndment rights:] Petitioner was
denied his right to counsel when the police, after
Petitioner invoked his right to counsel, initiated
contact with him the next day and continued to
interrogate him, resulting in a statement that the
state then introduced and used against him during
its case-in-chief.
Ground Two: Violation of Petitioner[’]s Sixth Amendment
rights[:] Trial counsel was ineffective for not
obtaining the victim[’]s medical records, (failure to
investigate), and for failing to obtain an[]
independent expert to review those medical records
in conjunction with the autopsy report which
indicated that the victim had a preexisting heart
problem and cocaine in his system.
See Pet., ECF No. 1 at 5, 7 (emphases added). The Magistrate Judge quoted the two grounds and
supporting facts in his R & R. See R & R, ECF No. 14 at 7–8.
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to the district court. The Magistrate

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Judge’s recommendation has no presumptive weight, and the responsibility to make a final
determination remains with the district court. Mathews v. Weber, 423 U.S. 261, 270–71 (1976). The
district court must make a de novo determination of those portions of the R & R to which specific
objection is made, and it 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 district court is obligated to conduct a de novo review of every portion of the Magistrate
Judge’s report to which objections have been filed. Id. However, 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) (“[D]e novo review [is] unnecessary in . . . situations when a party makes
general and conclusory objections that do not direct the court to a specific error in the magistrate’s
proposed findings and recommendation.”). The Court reviews only for clear error in the absence of a
specific objection. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
Furthermore, in the absence of specific objections to the R & R, this Court is not required to give any
explanation for adopting the recommendation. Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983).
DISCUSSION
I.

Habeas Standard
Because Petitioner filed his petition after the effective date of the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254 governs review of his claims. Lindh v.
Murphy, 521 U.S. 320 (1997); Breard v. Pruett, 134 F.3d 615, 618 (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
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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). “[A] federal habeas court may not issue the writ simply because that court
concludes in its independent judgment that the relevant state-court decision applied clearly established
federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams
v. Taylor, 529 U.S. 362, 411 (2000). “A state court’s determination that a claim lacks merit precludes
federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s
decision,” and “[e]ven a strong case for relief does not mean the state court’s contrary conclusion was
unreasonable.” Harrington v. Richter, 562 U.S. 86, 88 (2011) (quoting Yarborough v. Alvarado, 541
U.S. 652, 664 (2004)). Moreover, state court factual determinations are presumed to be correct, and
the petitioner has the burden to rebut this presumption by clear and convincing evidence. 28 U.S.C.
§ 2254(e)(1).
II.

The R & R and Petitioner’s Objections
A.

Ground One

Petitioner alleged in his petition that his Fifth and Sixth Amendment rights were violated when
law enforcement continued to interrogate him after he requested counsel, resulting in a statement used
against him at trial. See Pet., ECF No. 1 at 5. The Magistrate Judge ruled Petitioner’s Sixth
Amendment argument was procedurally barred because Petitioner made no Sixth Amendment challenge
at trial, and neither the trial court nor the South Carolina Court of Appeals ruled upon a Sixth
Amendment argument. See R & R, ECF No. 14 at 13. However, regarding Petitioner’s Fifth
Amendment argument, the Magistrate Judge found it was not procedurally barred because Petitioner

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raised a Fifth Amendment challenge at trial, the trial court ruled upon it, and the Court of Appeals
affirmed the issue on appeal. See id. The Magistrate Judge addressed the merits of the Fifth
Amendment argument and found Petitioner failed to show the state court’s decision was contrary to,
or an unreasonable application of, clearly established federal law. See id. at 18. Specifically, the
Magistrate Judge found the state court record showed Petitioner gave his statements freely, voluntarily,
knowingly, and intelligently after signing a waiver of rights form and receiving Miranda2 warnings.
See id. at 17. Therefore, the Magistrate Judge found Ground One lacked merit and recommended the
Court grant Respondent’s motion for summary judgment as to Ground One. See id. at 18–19.
Petitioner objects to the Magistrate Judge’s conclusion that Petitioner made his statements freely and
voluntarily. See Objection, ECF No. 30 at 1-3.
At the outset, the Court agrees with the Magistrate Judge’s finding that Petitioner’s Sixth
Amendment arguments are procedurally barred from habeas review because Petitioner did not present
a Sixth Amendment challenge in state court. See R & R, ECF No. 14 at 13. Accordingly, the Court
finds that to the extent Petitioner’s objections implicate the Sixth Amendment, these objections are
procedurally defaulted. See Coleman v. Thompson, 501 U.S. 722, 750 (1991) (“In all cases in which
a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate
state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate
cause for the default and actual prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.”).
Regarding the merits, the Court agrees with the Magistrate Judge’s finding that Petitioner made
a valid waiver of his Miranda rights before making his statements to law enforcement. See R & R, ECF

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Miranda v. Arizona, 384 U.S. 436 (1966).

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No. 14 at 18. As the Magistrate Judge recognized, the state court’s findings of fact regarding waiver
are entitled to deference by this court. See id. at 16; see also Evans v. Smith, 220 F.3d 306, 312 (4th
Cir. 2000) (“We also accord state court factual findings a presumption of correctness that can be
rebutted only by clear and convincing evidence.” (citing 28 U.S.C. § 2254(e)(1))). The state court
record, as thoroughly summarized in the R & R, shows Petitioner waived his Miranda rights after being
advised of them. See ECF No. 9-1 at 14–17, 28–31; R & R, ECF No. 14 at 11–12, 17–18. This Court
has carefully reviewed Petitioner’s objections and conducted a de novo review of the facts and law
concerning Ground One. The Court finds the Magistrate Judge’s disposition of Ground One is correct
and that Petitioner has not shown the state courts’ determination of this claim was contrary to or an
unreasonable application of federal law, or involved an unreasonable determination of the facts.
Accordingly, the Court overrules Petitioner’s objections and adopts the Magistrate Judge’s
recommendation as to Ground One.
B.

Ground Two

In his petition, Petitioner alleged trial counsel was ineffective for (1) failing to obtain the
victim’s medical records and (2) failing to have an independent expert review the victim’s medical
records. See Pet., ECF No. 1 at 7. Petitioner raised both claims in his state post-conviction relief
(PCR) application, and the state court rejected them. See ECF No. 9-4 at 106; ECF No. 9-5 at 698–99.
The Magistrate Judge addressed the two claims of ineffective assistance of counsel on the merits and
recommended this Court grant Respondent’s motion for summary judgment as to Ground Two. See
R & R, ECF No. 14 at 19–23. Petitioner argues in his objections to the R & R that his ineffective
assistance claims are “completely supported by the record and not mere speculation.” See Pet.’s
Objections, ECF No. 30 at 18.

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Claims of ineffective assistance of trial counsel must be reviewed under the two-part test
enunciated in Strickland v. Washington, 466 U.S. 668 (1984). A petitioner must first show trial
counsel’s performance was deficient or fell below an objective standard of reasonableness. Second,
the petitioner must show prejudice, meaning “there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different.” Id. at 688. In cases
brought under § 2254, “it is not enough to convince a federal habeas court that, in its independent
judgment, the state-court decision applied Strickland incorrectly. Rather, . . . § 2254(d)(1) requires a
habeas petitioner to show that the state court applied Strickland to the facts of his case in an objectively
unreasonable manner.” James v. Harrison, 389 F.3d 450, 457 (4th Cir. 2004) (internal quotation marks
and citations omitted).
Here, the Magistrate Judge afforded the required deference to the state court’s factual findings
and adjudication of the ineffective assistance claims, and he concluded Petitioner failed to present
evidence showing the state court’s rejection of the PCR claims was unreasonable. See R & R, ECF No.
14 at 22–23. Having conducted an independent review of the record, this Court reaches the same
conclusion as the Magistrate Judge—that the state court’s rejection of Petitioner’s claims of ineffective
assistance of counsel regarding the alleged failure to obtain the victim’s medical records and failure to
retain an expert was not contrary to or unreasonable under the Strickland standard. Accordingly, the
Court overrules Petitioner’s objections and adopts the Magistrate Judge’s recommendation as to
Ground Two.
CONCLUSION
The Court has reviewed the entire record, including the Magistrate Judge’s R & R and
Petitioner’s objections, and the applicable law. The Court has conducted a de novo review of the

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portions of the R & R to which Petitioner specifically objects, and it finds no merit in Petitioner’s
objections. For the reasons stated in this Court’s order and the Magistrate Judge’s R & R, the Court
overrules Petitioner’s objections and adopts and incorporates by reference the R & R [ECF No. 14].
Respondent’s motion for summary judgment [ECF No. 8] is GRANTED and the petition is
DISMISSED.
IT IS SO ORDERED.
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
Florence, South Carolina
June 24, 2015

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