Ackbar v. McFadden
AMENDED re: 67 ORDER RULING ON REPORT AND RECOMMENDATION: This Court adopts the R. & R. 63 as the order of the Court. Respondent's Motion for Summary Judgment (Dkt. No. 41 ) is granted. A certificate of appealability is DENIED. Signed by Honorable Richard M Gergel on 08/22/2017. (dsto, )
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Supreme Raheem Ackbar,
Case No 4:17-cv-334-RMG
AMENDED ORDER AND OPINION
This matter is before the Court on the Report and Recommendation ("R. & R. ") of the
Magistrate Judge (Dkt. No. 63) recommending that the Court grant Respondent's Motion for
Summary Judgment (Dkt. No. 41). For the reasons below, this Court adopts the R. & R. as the
order of the Court. Respondent' s Motion for Summary Judgment (Dkt. No. 41) is granted.
Background and Relevant Facts
The Magistrate has thoroughly summarized the facts of the case in the R. & R. (Dkt. No.
63 at 2-7), and Petitioner has not objected to those findings, so the Court need not repeat the facts
in detail here. Petitioner was found guilty of one count of murder at the end of a jury trial held
February 7-9, 2011. Later, proceeding pro se, Petitioner filed a petition for writ of habeas corpus
under 28 U.S.C. § 2254 on February 3, 2017. (Dkt. No. 1.) The Petition includes the following
allegations: (1 ) that the trial court lacked subject matter jurisdiction; (2) that the trial court failed
to impeach the witnesses; (3) that trial counsel failed to object and move the court to quash the
indictment before the jury was sworn; and (4) that trial counsel failed to move the court for a
In the R. & R., the Magistrate recommended that this Court grant summary judgment for
Respondent on Ground One because jurisdiction is a non-cognizable state law issue. (Dkt. No .
63 at 11). The Magistrate also recommended that this Court grant Summary Judgment for
Respondent on Petitioner' s ineffective assistance of counsel claims (Grounds Two, Three, and
Four) for several reasons. As to Ground Two, the Post-Conviction Relief ("PCR") court' s
finding that counsel ' s trial strategy for cross-examination was valid is entitled to the presumption
of correctness, and Petitioner did not proffer any questions he thought his counsel failed to ask.
(Dkt. No. 63 at 15-16.) As to Ground Three, Petitioner' s claim that his trial counsel failed to
object and move to quash the indictment before the jury was sworn, the Magistrate has explained
that the PCR court found that there was no legal basis to object to the failure of the arresting
officer to serve Petitioner with a warrant when Petitioner had already been properly arrested for a
prior armed robbery, and that the indictment gave Petitioner sufficient notice of the charges
against him. (Id. at 18-19) Finally, as to Petitioner' s fourth allegation that his counsel was
ineffective for failing to move for a directed verdict, the Magistrate explained that, in light of the
evidence of Petitioner's guilt, the PCR court reasonably found that trial counsel' s failure to move
for a directed verdict did not impact the outcome of the trial. (Id. at 20-21.)
Legal Standard - Magistrate's Report and Recommendation
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility for making a final determination remains with
this Court. See Mathews v. Weber, 423 U.S. 261 , 270- 71 (1976). This Court is charged with
making a de novo determination of those portions of the R. & R. to which specific objection is
made. Fed. R. Civ. P. 72(b)(2). Additionally, the Court may "accept, reject, or modify, in whole
or in part, the findings or recommendations made by the magistrate judge."
28 U.S.C. §
636(b)(l). Where the plaintiff fails to file any specific objections, "a district court need not
conduct a de novo review, but instead must only satisfy itself that there is no clear error on the
face of the record in order to accept the recommendation." See Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (internal quotation omitted).
Petitioner has filed timely objections to the Magistrate's R. & R. (Dkt. No. 65.) These
objections are almost unintelligible and do not specifically refer to any finding in the R. & R . For
example, Petitioner states that the R. & R. "embodies fraud," "is an instrument of oppression,"
and "highlights the arbitrary exercise of power by government officials who redundantly subvert
the integrity of the Court." (Dkt. No . 65 at 1.)
As Petitioner has not made a specific objection to any portion of the R. & R., the Court
need only satisfy itself that the Magistrate has made no clear error on the face of the record .
Finding no clear error in the Magistrate ' s determination that there is no basis for default
judgment on this habeas petition, the Court adopts the R. & R. as the order of the Court.
For the reasons above, this Court adopts the R. & R . as the order of the Court.
Respondent's Motion for Summary Judgment (Dkt. No. 41) is granted.
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
(c)(3) The certificate of appealability . . . shall indicate which
specific issue or issues satisfy the showing required by paragraph
28 U.S.C. § 2253(c). A prisoner satisfies the standard by demonstrating that reasonable jurists
would find this court' s assessment of his constitutional claims 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.
AND IT IS SO ORDERED.
Richard Mark Gergel
United States District Court Judge
August 2<...., 2017
Charleston, South Carolina
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