Brown v. McFadden

Filing 53

ORDER RULING ON REPORT AND RECOMMENDATION: The Court overrules Petitioner's objections, adopts the Report and Recommendation (ECF No. 45 ), and incorporates it herein. It is therefore ORDERED that Respondent's motion for summary judgment (ECF No. 33 ) is GRANTED and Petitioner's § 2254 petition is DISMISSED with prejudice. A certificate of appealability is denied. Signed by Honorable Bruce Howe Hendricks on 8/18/2016. (mcot, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Robert D. Brown,

Civil Action No.: 4:15-1478-BHH
Petitioner,

vs.
Opinion and Order
Warden McFadden,
Respondent.

Petitioner, Robert D. Brown, (“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. 45.) 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 July 20, 2016, the Magistrate Judge issued a Report; and on
August 17, 2016, Petitioner filed his Objections. (ECF No. 51.) 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).
In reviewing these pleadings, the Court is mindful of Petitioner’s pro se status.
When dealing with a pro se litigant, the Court is charged with liberal construction of the
pleadings. See, e.g., De’Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003). The
requirement of a liberal construction does not mean, however, that the Court can ignore
a petitioner’s clear failure to allege facts that set forth a cognizable claim, or that the

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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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Court must assume the existence of a genuine issue of material fact where none exists.
See United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012).
DISCUSSION
The Magistrate Judge found that Grounds One, Five, and Seven are procedurally
barred and the Court agrees. In his incredibly thorough thirty-eight 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. (ECF No. 45 at 13–20, 28–36.) See Martinez v. Ryan, 132
S.Ct. 1309, 1318–21 (2012); 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 One, Five, and Seven under § 2254.
The Court further agrees with the Magistrate Judge’s finding that Grounds Two,
Three, Four, and Six fail on their merits. These claims allege ineffective assistance of
trial counsel.2 (ECF No. 1 at 6–8.) The Magistrate Judge thoroughly discussed the state
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 and its progeny. (ECF No. 45 at 20–
38.)
Petitioner’s brief objections consist of nothing more than arguments that the
Magistrate Judge has already considered and rejected. (ECF No. 51 at 1–4.) Thus, the

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The Court agrees with the Magistrate Judge that, to the extent Ground Two alleges that the trial court
erred in admitting certain evidence, such a claim is not cognizable in habeas review. Pulley v. Harris, 465
U.S. 37, 41 (1984) (“A federal court may not issue the writ on the basis of a perceived error of state law.”);
Grundler v. North Carolina, 283 F.2d 798, 802 (4th Cir. 1960) (“Normally, the admissibility of evidence,
the sufficiency of evidence, and instructions to the jury in state trials are matters of state law and
procedure not involving federal constitutional issues.”).

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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 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 and the Magistrate Judge’s
conclusions evince no clear error. Accordingly, for the reasons stated above and by the
Magistrate Judge, the Court overrules Petitioner’s objections, adopts the Report, and
incorporates it herein. It is therefore ORDERED that Respondent’s motion for summary
judgment (ECF No. 33) 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 to be
debatable or wrong and that any dispositive procedural ruling by this 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

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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
August 18, 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.

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