Jones v. McFadden

Filing 24

ORDER RULING ON REPORT AND RECOMMENDATION: The Court overrules Petitioner's objections and adopts the Report 20 and incorporates it herein. It is therefore ORDERED that Respondent's motion for summary judgment (ECF No. 11 ) is GRANTED and Petitioner's § 2254 petition is DISMISSED with prejudice. A certificate of deniability is DENIED. Signed by Honorable Bruce Howe Hendricks on 03/03/2016. (dsto, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Donald Scott Jones, #336980,

Civil Action No.: 4:15-01401-BHH

Petitioner,
vs.
Opinion and Order
Joseph McFadden, Warden,
Respondent.

Petitioner, Donald Scott Jones, (“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(B)(2)(d), 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”). Magistrate Judge Rogers
recommends that Respondent’s Motion for Summary Judgment be granted and
Petitioner’s § 2254 petition be dismissed. (ECF No. 20.) 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 alleging, inter alia, ineffective
assistance of counsel. On January 20, 2016, the Magistrate Judge issued a Report; and
on February 8, 2016, Petitioner filed his Objections. (ECF No. 22.) Having carefully
reviewed the record, the Court finds that the Magistrate Judge has accurately and
adequately summarized the disputed and undisputed facts relevant to this action. The

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Court has reviewed the objections, but finds them to be without merit. Therefore, it will
enter judgment accordingly.1
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to the district court. The
recommendation has no presumptive weight. The responsibility to make a final
determination remains with the district 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 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). 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 Two (4), Two (5), Three, and Five are
procedurally barred and the Court agrees. In his thorough thirty-page Report, the
Magistrate Judge found that Petitioner had failed to show cause for his procedural
default because he could not show that the claims were substantial and had not
demonstrated prejudice. See Martinez v. Ryan, 132 S. Ct. 1309, 1318–21 (2012);
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As always, the Court says only what is necessary to address Petitioner’s objections against the already
meaningful backdrop of a thorough Report of the Magistrate Judge, incorporated entirely by specific reference,
herein, to the degree not inconsistent. Exhaustive recitation of law and fact exists there.

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Coleman v. Thompson, 501 U.S. 722, 749–50 (1991); Strickland v. Washington, 466
U.S. 668, 687 (1984). The Court agrees with the Magistrate Judge’s thoughtful and
comprehensive discussion of these claims and, therefore, is unable to review Grounds
Two (4), Two (5), Three, and Five under § 2254.
The Court further agrees with the Magistrate Judge’s finding that Grounds One
and Four fail to state a cognizable § 2254 claim. Ground One alleges that the trial judge
erred in refusing to charge the jury on defense of others. (ECF No. 1 at 5.) As the
Magistrate Judge correctly stated, “[t]he issue of whether the trial judge properly
charged the jury on defense of others only implicates state criminal law,” and therefore,
“is a matter of state law that is not cognizable in a federal habeas action.” (ECF No. 20
at 15.) Ground Four alleges that PCR Judge Derham Cole should have recused himself
from Petitioner’s PCR proceeding because he was also the trial judge, he made false
statements in the order of dismissal, and he prevented Petitioner from testifying about
trial counsel’s failure to investigate. (ECF No. 1 at 10.) As the Magistrate Judge
correctly noted, allegations of “error in Petitioner’s state collateral review proceeding”
are “not cognizable in habeas corpus actions.” (Id. at 29 (citing Lawrence v. Branker,
517 F.3d 700, 717 (4th Cir. 2008) (“Thus, even where there is some error in state postconviction proceedings, a petitioner is not entitled to federal habeas relief because the
assignment of error relating to those post-conviction proceedings represents an attack
on a proceeding collateral to detention and not to the detention itself.”)).)
Finally, the Court agrees with the Magistrate Judge’s finding that Grounds Two
(1), Two (2), and Two (3) fail on their merits. These claims allege ineffective assistance
of trial counsel. (ECF No. 1 at 7.) The Magistrate Judge thoroughly discussed the state

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court’s treatment of these claims 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. 20 at 15–23.)
As noted above, Petitioner filed objections to the Magistrate Judge's Report
which the Court has carefully reviewed. According the requisite liberal construction, the
Court finds that certain portions of Petitioner’s filing raise specific objections and thus
invoke de novo review, which the Court has conducted. Petitioner first objects that the
Magistrate Judge did not include all of Petitioner’s “claims and issues” when
summarizing the procedural history of this case; specifically, in the “PCR Appeal”
section. (ECF No. 22 at 1–5.) Here, Petitioner references his pro se response to his
PCR counsel’s Johnson petition, and argues that the Magistrate omitted “his claim of
prosecutorial misconduct” as set forth on “page 10, paragraph 4 and 5.” (Id. at 2.) The
Magistrate Judge quoted verbatim the issues as stated by Petitioner in his response.
(ECF No. 20 at 4–6.) Petitioner appears to assert that the Magistrate should also have
mentioned the factual statement portions of his response. His “claim of prosecutorial
misconduct,” as cited by Petitioner, is included in the “Statement” section under one of
Petitioner’s ineffective assistance of counsel claims. (ECF No. 10-10 at 12–13.) The
Court finds that the Magistrate Judge had no reason to discuss Petitioner’s response
beyond the issues expressly raised within, and further finds no error in his summary of
the procedural history. This objection is therefore overruled.
Petitioner next objects that the Magistrate Judge erred in finding that Ground
Three is procedurally barred. (ECF No. 22 at 8–11.) Ground Three alleges that

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Petitioner was the subject of vindictive prosecution because the solicitor enhanced his
charge from assault and battery of high aggravated nature (“ABHAN”) to assault and
battery with intent to kill (“ABWIK”) to punish Petitioner for exercising his right to a jury
trial. (ECF No. 1 at 8.) Petitioner now claims that he has “new evidence” and asserts
“actual innocence from the charge of assault and battery with intent to kill.” (ECF No. 22
at 9–10.) However, it is unclear what “new evidence” Petitioner proffers. Petitioner
appears to contend that his June 10, 2013 letter to his PCR counsel requesting that
counsel amend Petitioner’s PCR application constitutes new evidence. (Id. at 9; ECF
No. 17-2 at 3–9.) The Court does not believe this letter constitutes reliable new
evidence. Schlup v. Delo, 513 U.S. 298, 324–27 (1995) (finding that a claim of actual
innocence must be supported “with new reliable evidence”). Regardless, Petitioner’s
actual innocence claim fails because he has not established that, “more likely than not,
in light of the new evidence, no reasonable juror would find him guilty beyond a
reasonable doubt.” House v. Bell, 547 U.S. 518, 538 (2006); see Schlup, 513 U.S. at
324–27 (finding that, in addition to introducing new reliable evidence, a petitioner’s claim
of actual innocence “must show that it is more likely than not that no reasonable juror
would have convicted him in the light of the new evidence”). Accordingly, the Court finds
that Ground Three is procedurally barred and overrules this objection.
Finally, Petitioner objects that the Magistrate Judge erred in describing the
allegations raised in Ground Five and again claims actual innocence. (ECF No. 22 at
13.) Ground Five alleges prosecutorial misconduct as a result of the solicitor’s use of
purportedly false testimony by Tammy Byars.2 (ECF No. 1-1 at 1.) Here, Petitioner
asserts that “the solicitor’s misrepresentation was again left out” and states that he has
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Tammy Byars testified for the State at Petitioner’s trial. (See ECF No. 10-1 at 117–145.)

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new evidence in the form of an attachment to his petition titled “Prosecutorial
Misconduct.” (ECF Nos. 22 at 13; 1-1 at 1.) Petitioner relies on this “new evidence” to
again assert actual innocence of the ABWIK charge. (ECF No. 22 at 13–18.) Contrary to
Petitioner’s assertions, the Magistrate Judge quoted the referenced attachment
verbatim under Ground Five. (ECF No. 20 at 8–9.) It is unclear what else the Magistrate
Judge should have mentioned here other than what was directly stated in the petition
under Ground Five—the Court can find no error in this respect.
As to the actual innocence claim, the Court does not believe that the referenced
attachment to the petition constitutes reliable new evidence. Schlup, 513 U.S. at
324–27. Regardless, this claim fails because Petitioner has not established that, “more
likely than not, in light of the new evidence, no reasonable juror would find him guilty
beyond a reasonable doubt.” House, 547 at 538; see Schlup, 513 U.S. at 324–27.
Accordingly, the Court finds that Ground Five is procedurally barred and overrules this
objection.
Petitioner’s remaining 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 extensively discuss
those same issues for a second time here. Therefore, the Court will overrule Petitioner’s
remaining objections.
CONCLUSION
After a thorough review of the Report, the record, and the applicable law, the
Court finds that Petitioner’s objections are without merit. Accordingly, for the reasons

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stated above and by the Magistrate Judge, the Court overrules Petitioner’s objections
and adopts the Report and incorporates it herein. It is therefore ORDERED that
Respondent’s motion for summary judgment (ECF No. 11) is GRANTED and
Petitioner’s § 2254 petition is DISMISSED with prejudice.
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 in 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. 2011). In
this case, the legal standard for the issuance of a certificate of appealability has not
been met. Therefore, a certificate of deniability is DENIED.
IT IS SO ORDERED.

/s/ Bruce Howe Hendricks
United States District Judge
March 3, 2016
Greenville, South Carolina
*****

NOTICE OF RIGHT TO APPEAL
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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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