Straws v. Stevenson

Filing 51

ORDER RULING ON REPORT AND RECOMMENDATION: The court overrules the petitioner's objections, adopts the Magistrate Judge's Report 43 to the extent that it does not contradict this Order, and incorporates it herein . It is therefore ORDERED that respondent's motion for summary judgment (ECF No. 34 ) is GRANTED and the petitioner's petition is DISMISSED WITH PREJUDICE and without an evidentiary hearing. Signed by Honorable Bruce Howe Hendricks on 3/31/2015. (mcot, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Jabbar Jomo Straws, #231018

) Civil Action No.: 5:13-3484-BHH
)
Petitioner, )
)
v.
)
OPINION AND ORDER
)
Robert M. Stevenson, III, Warden,
)
)
Respondent. )
__________________________________ )
The petitioner, Jabbar Jomo Straws (“the petitioner”), proceeding pro se, filed this
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, D.S.C., the action was referred to United States
Magistrate Judge Kaymani D. West for pretrial handling and a Report and
Recommendation (“Report”). Judge West recommends that the respondent’s motion for
summary judgment be granted and the petitioner’s petition for writ of habeas corpus be
dismissed with prejudice. (ECF No. 43.) The Report and Recommendation sets forth in
detail the relevant facts and standards of law on this matter and the Court incorporates
them without recitation.
BACKGROUND
The petitioner filed this action against the respondent on December 11, 2013,1
alleging, inter alia, prosecutorial misconduct and ineffective assistance of counsel. On
December 17, 2014, the Magistrate Judge issued a Report; and on January 7, 2015, the
Clerk of Court entered petitioner’s objections, along with several attachments. (ECF No.

1

This filing date reflects that the envelope containing the petition was stamped as having
been received on December 11, 2013, by the BRCI (Broad River Correctional Institution)
mailroom. (ECF No.1-1.) Houston v. Lack, 487 U.S. 266 (1988) (holding prisoner's pleading is
considered filed when given to prison authorities for forwarding to the district court).

46). The court has reviewed the objections but finds them to be without merit. Therefore,
it will enter judgment accordingly.
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to the court. The
recommendation has no presumptive weight.

The responsibility to make a final

determination remains with the court. Mathews v. Weber, 423 U.S. 261, 270–71, 96 S. Ct.
549, 46 L.Ed.2d 483 (1976). The court is charged with making a de novo determination of
those portions of the Report and Recommendation 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).
However, 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
In regards to the filing of objections, the Magistrate Judge instructed the petitioner
as follows:
The parties are advised that they may file specific written
objections to this Report and Recommendation with the District
Judge. Objections must specifically identify the portions of the
Report and Recommendation to which objections are made
and the basis for such objections. “[I]n the absence of a timely
filed objection, 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
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recommendation.’” Diamond v. Colonial Life & Acc. Ins. Co.,
416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72
advisory committee’s note).
*****
Failure to timely file specific written objections to this
Report and Recommendation will result in waiver of the
right to appeal from a judgment of the District Court based
upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas
v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841
(4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th
Cir. 1984).

(ECF No. 43 at 41). Nevertheless, the petitioner failed to lodge any specific objections to
the Report. Instead, he states that “every” document attached to this objection to the
REPORT AND RECOMMENDATION is his objection.” (ECF No. 46 at 2). Therefore, in
light of the petitioner’s failure to file any specific objections to the Report, the objections that
he did file will be overruled.
CONCLUSION
For the reasons stated above and by the Magistrate Judge, the court overrules the
petitioner’s objections, adopts the Magistrate Judge’s Report to the extent that it does not
contradict this Order, and incorporates it herein.2

It is therefore ORDERED that

respondent’s motion for summary judgment (ECF No. 34) is GRANTED and the petitioner’s
petition is DISMISSED WITH PREJUDICE and without an evidentiary hearing.
2

In Ground One of his petition, the petitioner claims the that the admission of his
statement violated his Fifth Amendment rights. In discussing this issue, the Magistrate Judge’s
stated that “[t]he PCR court determined that trial counsel’s decision to challenge the statement
based on Petitioner’s allegedly intoxicated condition and not on the basis of a Miranda violation
was a reasonable strategic tactic.” (ECF No. 43). The court finds that this statement is not
contrary to the PCR court’s finding “that trial counsel articulated valid strategic reasons for not
introducing the Miranda right sheet into evidence and not objecting to testimony regarding oral
statements made by the Applicant, and that Applicant has not shown that counsel was deficient
in that choice of tactic.” (R. at 626.) That the PCR court did not specifically mention the
intoxication strategy is of no moment.

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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 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/Bruce Howe Hendricks
United States District Judge
March 31, 2015
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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