Sheppard v. Reynolds

Filing 30

OPINION AND ORDER: The Court overrules Petitioner's objections and adopts and incorporates by reference the Magistrate Judge's 25 Report herein. It is therefore ORDERED that Respondent's motion for summary judgment (ECF No. 18 ) is GRANTED and Petitioner's § 2254 petition is DISMISSED without an evidentiary hearing. A certificate of appealability is DENIED. Signed by Honorable Bruce Howe Hendricks on 1/13/2016. (prou, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA Louis Sheppard, #262090, ) Civil Action No.: 4:15-798-BHH ) Petitioner, ) ) v. ) OPINION AND ORDER ) Warden Cecilia Reynolds, ) ) Respondent. ) __________________________________ ) Petitioner Louis Sheppard, (“Petitioner”), proceeding pro se, filed this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., the action was referred to United States Magistrate Judge Thomas E. Rogers, III, for pretrial handling and a Report and Recommendation (“Report”). Judge Rogers recommends that Respondent’s motion for summary judgment be granted and Petitioner’s § 2254 petition be dismissed without an evidentiary hearing. (ECF No. 25.) The Report sets forth in detail the relevant facts and standards of law on this matter and the Court incorporates them without recitation. BACKGROUND Petitioner filed this action against Respondent on February 26, 2015, alleging ineffective assistance of counsel. On September 10, 2015, the Magistrate Judge issued a Report; and on September 24, 2015, Petitioner filed his Objections. (ECF No. 27.) The Court has reviewed the objections, but finds them to be without merit. Therefore, it will enter judgment accordingly. STANDARD OF REVIEW The Magistrate Judge makes only a recommendation to the court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with the court. Mathews v. Weber, 423 U.S. 261, 270–71 (1976). The court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made, and the court 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). 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). In the absence of a timely filed, specific objection, the Magistrate Judge's conclusions are reviewed only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005). DISCUSSION The Magistrate Judge found that Grounds One, Three, and Four are procedurally barred and the Court agrees. Moreover, Petitioner has made no showing of cause for his failure to raise these claims or actual prejudice, nor does he demonstrate that failure to consider these claims would result in a miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 749–750 (1991). Therefore, the Court is unable to review Grounds One, Three, and Four under § 2254. -2- In Ground Two, Petitioner contends that his trial counsel “erred in ordering [P]etitioner not to testify in his defense at trial.” (ECF No. 1 at 7.) The Magistrate Judge thoroughly discussed the state court’s treatment of this claim and correctly concluded that the ruling of the state court was reasonable and that Petitioner failed to carry his burden of establishing counsel was ineffective as required by Strickland v. Washington, 466 U.S. 886 (1984), and its progeny. (ECF No. 25 at 13–16.) Petitioner’s objections consist of nothing more than arguments that the Magistrate Judge has already considered and rejected. Thus, the Court is tasked only with review of the Magistrate Judge’s conclusions for clear error. Because the Court agrees with the cogent analysis by the Magistrate Judge, it need not discuss those same issues for a second time here. Therefore, the Court will overrule Petitioner’s objections. CONCLUSION For the reasons stated above and by the Magistrate Judge, the Court overrules Petitioner’s objections and adopts and incorporates by reference the Magistrate Judge’s Report herein. It is therefore ORDERED that Respondent’s motion for summary judgment (ECF No. 18) is GRANTED and Petitioner’s § 2254 petition is DISMISSED without an evidentiary hearing. 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). -3- 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. Therefore, a certificate of appealability is DENIED. IT IS SO ORDERED. /s/Bruce Howe Hendricks United States District Judge January 13, 2016 Greenville, 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. -4-

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