Simpson v. Stevenson

Filing 51

ORDER RULING ON REPORT AND RECOMMENDATION: The court adopts the Report and Recommendation 41 . Accordingly, Petitioner's motion for an evidentiary hearing 38 is denied. Respondent's motion for summary judgment 26 is granted. This petition is dismissed with prejudice. Signed by Honorable Cameron McGowan Currie on 6/25/2013. (mcot, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Devario Marshetti Simpson,

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Petitioner,
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v.
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Robert Stevenson, Warden,
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Respondent.
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___________________________________ )

C/A NO. 5:12-2612-CMC-KDW

OPINION and ORDER

This matter is before the court on Petitioner’s pro se application for writ of habeas corpus,
filed in this court pursuant to 28 U.S.C. § 2254.
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(c), DSC, this
matter was referred to United States Magistrate Judge Kaymani D. West for pre-trial proceedings
and a Report and Recommendation (“Report”). On May 30, 2013, the Magistrate Judge issued a
Report recommending that Petitioner’s motion for an evidentiary hearing be denied, Respondent’s
motion for summary judgment be granted, and this matter be dismissed with prejudice. The
Magistrate Judge advised the parties of the procedures and requirements for filing objections to the
Report and the serious consequences if they failed to do so. After applying for and receiving an
extension of time to do so, Petitioner filed objections to the Report on June 24, 2013.
The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight, and the responsibility to make a final determination remains with the court.
See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo
determination of any portion of the Report of the Magistrate Judge to which a specific objection is
made. The court may accept, reject, or modify, in whole or in part, the recommendation made by
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the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28
U.S.C. § 636(b).
After conducting a de novo review of those matters as to which an objection was made, and
considering the applicable law, the Report and Recommendation of the Magistrate Judge, and
Petitioner’s objections, the court agrees with the conclusions of the Magistrate Judge. Accordingly,
the court adopts and incorporates the Report and Recommendation
Petitioner presents several objections regarding the Report’s conclusion that Petitioner’s
Fourth Amendment claims are not reviewable in this federal habeas petition. See Objections at 4-9
(ECF No. 49). Petitioner argues that the Magistrate Judge failed to apply the “proper analytical
analysis to Petitioner’s Fourth Amendment claim[;]” Obj. at 6; that “the Stone v. Powell[, 428 U.S.
465 (1976)] prudential underpinnings are no longer applicable to Fourth Amendment claims on
collateral review under the AEDPA[;]” id. at 7; and that the Magistrate Judge “was required to do
more than merely examine whether a [Fourth Amendment] claim was litigated on the merits in state
court . . . [,]” id. at 8.
These arguments are without merit. Fully litigated Fourth Amendment claims are not
cognizable in federal habeas corpus petitions, even after the enactment of the AEDPA. Mueller v.
Angelone, 181 F.3d 557, 570 n.8 (4th Cir. 1999) (recognizing continued application of Stone
post-AEDPA); Grimsley v. Dodson, 696 F.2d 303, 304 (4th Cir. 1982) ( “Stone v. Powell marked,
for most practical purposes, the end of federal court reconsideration of Fourth Amendment claims
by way of habeas corpus petitions where the petitioner has the opportunity to litigate those claims
in state court.”). As found by the Magistrate Judge, Petitioner fully litigated his Fourth Amendment
claims in the state trial court and on direct appeal. Accordingly, Petitioner’s objections relating to
this ground for relief are rejected.

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Petitioner next argues the Report errs in “improperly adopting facts as asserted by
Respondent[ ]” in rejecting the substance of Petitioner’s second ground for relief. Obj. at 10.
Petitioner maintains that his underlying argument was not that trial counsel should have visited the
site of the traffic stop; rather, that counsel “failed to obtain the video tape of the traffic stop.” Id.
(emphasis removed). A review of the state PCR court’s Order of Dismissal indicates that after
review of the Solicitor’s file, it was determined there was no videotape of the traffic stop. See Order
of Dismissal at 1 n.1 (ECF No. 27-3 at 122).
Petitioner’s argument in his PCR application was that trial counsel was ineffective in failing
to properly prepare for trial. In the course of arguing counsel was constitutionally ineffective,
Petitioner testified that counsel did not visit the site of the underlying traffic stop, and had he done
so, he would have discovered that it was not a two-way stop as testified to by one of the law
enforcement officers at trial, but a four-way stop. See Tr. of PCR Evidentiary Hrg. at 360-62 (ECF
No. 27-3 at 61-63). Impliedly, therefore, as determined by the PCR court, Petitioner argued that
counsel was constitutionally ineffective in failing to visit the site. Additionally, the PCR court fully
addressed Petitioner’s contention regarding an alleged video tape in its Order of Dismissal. See
Order of Dismissal at 6 (ECF No. 27-3 at 127). Therefore, this objection is also without merit.
Accordingly, Petitioner’s motion for an evidentiary hearing is denied. Respondent’s motion
for summary judgment is granted. This 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 by paragraph (2).
28 U.S.C. § 2253(c). A prisoner satisfies this standard by demonstrating that reasonable jurists
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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/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
UNITED STATES DISTRICT JUDGE

Columbia, South Carolina
June 25, 2013

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