Evatt v. Stephan
Filing
53
ORDER RULING ON REPORT AND RECOMMENDATION: IT IS ORDERED that the Report, ECF No. 39 , is ACCEPTED, and the Petitioner's Objections, ECF No. 43 , are OVERRULED. The Respondent's motion for summary judgment, ECF No.[1 1], is GRANTED, and the Petition, ECF No. 1 , is hereby DISMISSED. In light of the dismissal of the Petition, all other pending motions are hereby deemed MOOT. ECF Nos. 22 , 24 , 25 , 29 , 30 , 31 , 51 . The Court concludes that it is not appropriate to issue a certificate of appealability. Signed by Chief Judge Terry L Wooten on 02/05/2019. (dsto, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
WALLACE EUGENE EVATT, JR.,
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Petitioner,
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v.
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WARDEN STEPHAN,
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Respondent.
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__________________________________________)
C/A No.: 4:18-cv-0994-TLW
Petitioner Wallace Eugene Evatt, Jr., proceeding pro se, filed this petition pursuant to
28 U.S.C. § 2254. ECF No. 1. Respondent Warden Stephan filed a motion for summary judgment
on June 8, 2018, ECF No. 11, to which Petitioner responded, ECF No. 35. Petitioner has also filed
various other motions. ECF Nos. 22, 24, 25, 29, 30, 31, 51.
This matter now comes before this Court for review of the Report and Recommendation
(the Report) filed on November 1, 2018, by United States Magistrate Judge Thomas E. Rogers,
III, to whom this case was previously assigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local
Civil Rule 73.02(B)(2)(c), (D.S.C.). In the Report, the Magistrate Judge recommends granting
summary judgment and dismissing the petition. ECF No. 39. Petitioner filed Objections to the
Report, ECF No. 43, and Respondent filed a Reply to the Objections, ECF No. 48. This matter is
now ripe for disposition.
The Court is charged with conducting a de novo review of any portion of the Magistrate
Judge’s Report and Recommendation to which a specific objection is registered, and may accept,
reject, or modify, in whole or in part, the recommendations contained in that report. 28 U.S.C.
§ 636. In conducting its review, the Court applies the following standard:
The magistrate judge makes only a recommendation to the Court, to which any
party may file written objections …. The Court is not bound by the recommendation
of the magistrate judge but, instead, retains responsibility for the final
determination. The Court is required to make a de novo determination of those
portions of the report or specified findings or recommendation as to which an
objection is made. However, the Court is not required to review, under a de novo
or any other standard, the factual or legal conclusions of the magistrate judge as to
those portions of the report and recommendation to which no objections are
addressed. While the level of scrutiny entailed by the Court’s review of the Report
thus depends on whether or not objections have been filed, in either case the Court
is free, after review, to accept, reject, or modify any of the magistrate judge’s
findings or recommendations.
Wallace v. Housing Auth. of the City of Columbia, 791 F. Supp. 137, 138 (D.S.C. 1992) (citations
omitted).
In light of the standard set forth in Wallace, the Court has carefully reviewed, de novo, the
Report, the applicable law, the Objections, and all other relevant filings, including cites to the
record by counsel. As noted in the Report, Petitioner has not presented cause for the procedural
default of four of his habeas claims, and these claims are therefore procedurally barred for the
reasons stated in the Report. ECF No. 39 at 10–20. Further, the Court accepts the Magistrate
Judge’s careful factual and legal analysis, which concludes that the “PCR court’s rejection of the
ineffective assistance of counsel ground for relief did not result in an unreasonable application of
Strickland and was not based upon an unreasonable determination of facts in light of the state court
record.” Id. at 22. Therefore, after careful consideration, IT IS ORDERED that the Report, ECF
No. 39, is ACCEPTED, and the Petitioner’s Objections, ECF No. 43, are OVERRULED. The
Respondent’s motion for summary judgment, ECF No. 11, is GRANTED, and the Petition, ECF
No. 1, is hereby DISMISSED. In light of the dismissal of the Petition, all other pending motions
are hereby deemed MOOT. ECF Nos. 22, 24, 25, 29, 30, 31, 51.
The Court has reviewed this Petition in accordance with Rule 11 of the Rules Governing
Section 2254 Proceedings. The Court concludes that it is not appropriate to issue a certificate of
appealability as to the issues raised herein. Petitioner is advised that he may seek a certificate from
the Fourth Circuit Court of Appeals under Rule 22 of the Federal Rules of Appellate Procedure.
IT IS SO ORDERED.
February 5, 2019
Columbia, South Carolina
s/Terry L. Wooten____________
Chief United States District Judge
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