Sabb v. Warden of Broad River Correctional Institution

Filing 45

OPINION AND ORDER RULING ON REPORT AND RECOMMENDATION: The Court ADOPTS the Report (ECF No. 36 ) of the Magistrate Judge and incorporates it herein. Accordingly, Petitioner's objections (ECF No. 40 ) are OVERRULED, R espondent's motion for summary judgment (ECF No. 28 ) is GRANTED, Petitioner's § 2254 habeas petition (ECF No. 1 ) is DENIED, and a certificate of appealability is denied. IT IS SO ORDERED. Signed by Honorable Bruce Howe Hendricks on 9/15/2022. (prou, )

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UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Roosevelt Sabb, Jr.,

)
)
Petitioner, )
vs.
)
)
Warden of Broad River Correctional
)
Institution,
)
)
Respondent. )
_________________________________ )

Civil Action No. 5:21-2603-BHH

OPINION AND ORDER

This matter is before the Court for review of the Report and Recommendation
entered by United States Magistrate Judge Kaymani D. West on May 12, 2022 (“Report”).
(ECF No. 36.) In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02 for the
District of South Carolina, this case was referred to Magistrate Judge West to review
Petitioner Roosevelt Sabb, Jr.’s (“Petitioner”) 28 U.S.C. § 2254 habeas petition and for
pretrial handling. In her Report, the Magistrate Judge recommends that Respondent
Warden of Broad River Correctional Institution’s (“Respondent”) motion for summary
judgment (ECF No. 28) be granted, and the petition be denied. (See ECF No. 36 at 30.)
The Report sets forth in detail the relevant facts and standards of law, and the Court
incorporates them here without recitation. 1
BACKGROUND
The Magistrate Judge entered her Report on May 12, 2022, recommending that

As always, the Court says only what is necessary to address Petitioner’s objections against the already
meaningful backdrop of a thorough Report and Recommendation by the Magistrate Judge; exhaustive
recitation of law and fact exists there.

1

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Respondent’s motion for summary judgment (ECF No. 28) be granted and that
Petitioner’s habeas petition (ECF No. 1) be denied. (ECF No. 36 at 30.) Petitioner filed
objections on June 9, 2022. (ECF No. 40.) The matter is ripe for consideration and the
Court now makes the following ruling.
STANDARD OF REVIEW
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 the Magistrate Judge or
recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b). In
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 recommendation.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d
310, 315 (4th Cir. 2005).
DISCUSSION
A. Procedurally Barred Claims
Magistrate Judge West first found that Grounds Two and Three of the habeas
petition are procedurally barred because Petitioner failed to raise these claims to the PCR
Court (ECF No. 36 at 19), and that Petitioner has not shown sufficient cause and prejudice
to excuse the default of his Ground Two and Three claims (id. at 20–21).
In his objections, Petitioner argues:

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The Petitioner OBJECTS to the Magistrates R+R that his ground two claim
was not presented to the state court. The Magistrate relied on the states
response which mislead the Judge, because the Petitioner did raise this
claim to the State Supreme Court. See Petitioners PRO SE writ of certiorari
App page 5.
The Petitioner OBJECTS to the Magistrates R+R that Petitioner ground
three claim was not presented to the state court. The Magistrate relied on
the states response which mislead the Judge, Because the petitioner did
raise this claim to the State Supreme Court, see Petitioners Pro Se writ of
certiorari App page 10.
....
The Petitioner OBJECTS to the Magistrates R+R that does not address the
Petitioner ground two claim that the state court ruling was an unreasonable
application where counsel put his faith in the integrity and infavorability of
the police investigation. The Magistrate only relied on the States response
which mislead the Court.
The Petitioner OBJECTS to the Magistrates R+R that does not address
Petitioners ground three claim that the state courts ruling was contrary to
federal law as decided by the Supreme Court, where the Magistrate relied
on the state courts response and not the facts presented.
(ECF No. 40 at 3–4, 5–6 (errors in original).)
Ground Two avers:
Counsel put his faith in the infavorability of the police investigation.
(a) The state courts ruling that counsel reasonably investigated was an
unreasonable application of clearly established Federal law and determined
by the supreme court that counsel’s testimony confirmed petitioner’s claim
that counsel’s decisions not to investigate was based in his faith in the
integrity and infavorability of the police investigation.
(ECF No. 1 at 9 (errors in original).) Ground Three alleges:
The state court did not rule with finding of facts and conclusions of law.
(a) The state court ruled contrary to clearly established Federal law as
determined by the supreme court by passing on petitioner’s credibility at
presentment of his claims without stating expressly its finding of facts and
conclusions of law.
(Id. at 11 (errors in original).) It is undisputed that neither of these Grounds was presented

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to the PCR Court for determination. Thus, they are procedurally defaulted and outside the
scope of this Court’s habeas review unless Petitioner establishes both cause for the
default and prejudice. See Martinez v. Ryan, 566 U.S. 1, 9 (2012); Plymail v. Mirandy, 8
F.4th 308, 316 (4th Cir. 2021), as amended (Sept. 7, 2021). The fact—which appears to
the basis of Petitioner’s objections—that Petitioner raised Grounds Two and Three on
PCR appeal in his pro se response to PCR counsel’s Johnson petition for writ of certiorari
is immaterial. Magistrate Judge West was correct to conclude that Grounds Two and
Three are procedurally barred, and Petitioner has not demonstrated cause and prejudice.
Accordingly, the objections are overruled.
B. Merits Review
The Magistrate Judge evaluated the merits of Grounds One and Four through
Seven together. (ECF No. 36 at 21–30.) This is because these Grounds collectively allege
infirmity in Petitioner’s guilty plea based upon various aspects of counsel’s performance,
which is alleged to have been ineffective, thereby forcing Petitioner to plead guilty
because he did not believe counsel was prepared for trial. (See ECF No. 1 at 6, 14–17.)
After summarizing the relevant testimony at the PCR hearing, explaining the PCR Court’s
findings, and considering Respondent and Petitioner’s arguments as to summary
judgment (see ECF No. 36 at 21–27), Magistrate Judge West found that the PCR
evidence supports the PCR Court’s conclusions that:
(a) counsel’s in-person meetings with Petitioner were minimal due to
Petitioner’s truck driving job but counsel met with Petitioner multiple times
for three to four hours on the days leading up to the plea; (b) counsel’s
discussion with Petitioner included a review of all the discovery and the
possibility of a plea deal; (c) counsel went to the scene with his investigator
and consulted with an accident reconstruction expert concerning the MAIT
investigator’s findings and his expert found the findings to be accurate; (d)
counsel reviewed Petitioner’s charges with him and they discussed the

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MAIT report and the findings of the accident reconstruction experts; (e)
counsel was not able to find any favorable witnesses, (f) it was Petitioner’s
decision to plead guilty and he believed it was in Petitioner’s best interest;
and (g) counsel would have taken the case to trial if Petitioner[] chose to.
(Id. at 28.) Magistrate Judge West determined that the PCR Court was reasonable to find
that Petitioner failed to show his guilty plea was induced by ineffective assistance of
counsel, because Petitioner failed to make a threshold showing that counsel was deficient
in his preparation. (Id.) Moreover, the Magistrate Judge noted that the PCR Court, in its
factual findings, assessed counsel’s testimony to be credible and Petitioner’s testimony
to be not credible, a determination that is entitled to deference in this habeas proceeding.
(Id.) In summary, Magistrate Judge West found: (1) Petitioner’s ineffective assistance of
counsel and involuntary guilty plea arguments are insufficient to satisfy the test for relief
under Strickland v. Washington, 466 U.S. 668 (1984); (2) Petitioner failed to show by clear
and convincing evidence that the PCR Court reached an unreasonable factual
determination on any of the disputed issues; and (3) Petitioner failed to show the PCR
Court unreasonably applied U.S. Supreme Court precedent in deciding his ineffective
assistance of counsel and involuntary guilty plea claims. (ECF No. 36 at 29.)
In his objections, Petitioner argues:
The Petitioner OBJECTS to the Magistrates Judge re-characterizing his
constitutional claim by rephrasing the claim and then addressing only part
of the claim and or an entirely different claim than what was raised by
Petitioner.
The Petitioner OBJECTS to the Magistrates rephrasing ground one, and
only addressing the adjudication. The Petitioner raised a constitutional
violation due to an error in the plea colloquy, that were contrary to Federal
law as established by the Supreme Court. Petitioner raised this claim at
PCR app 40 and Pro SE Brief to State Supreme Court App pg 9.
The Petitioner OBJECTS to the Magistrates rephrasing of ground four and
only addressing the state court erroneous fact finding in its order. The

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Magistrate did not address Petitioners constitutional violation that the State
court ruling was unreasonable in light of evidence presented, and it was
contrary to clearly established federal law as ruled on by the Supreme
Court. Where counsel testified that he did not regularly consult with
Petitioner.
The Petitioner OBJECTS to the Magistrates rephrasing ground six and not
addressing Petitioners claim that his constitutional rights were violated
when the State Court ruled contrary to Federal law as established by the
Supreme Court where counsel failed to hire or discuss hiring an expert
witness.
....
The Petitioner OBJECTS to the Magistrates addressing claims not raised in
Petitioners 28 USC 2254 motion. See Petitioners filings in his 2254
proceedings. The Magistrates R+R DOES NOT address the claim raised by
Petitioner, which is a violation of Clisby v. Jones, 960 F.2d 925, 935–936
(11th Cir. 1992) Instead of addressing these claims the R+R reiterates the
State Courts order which DOES NOT address the claim and FACTS before
the Court in the 2254 pleadings.
The Petitioner OBJECTS to the Magistrates R+R that does not address
Petitioner’s ground five claim that the State Court’s ruling that counsel did
not give bad advice was unreasonable in light of evidence presented in
court where counsel conceded this claim. The Magistrate’s order does not
address the claim and/or facts presented by the Petitioner.
The Petitioner OBJECTS to the Magistrates R+R on ground one, that does
not address that the plea colloquy was accepted contrary to federal law as
established by the Supreme Court. The Magistrate only relied on the State
response and not the facts and evidence presented.
The Petitioner OBJECTS to the Magistrates R+R that DOES NOT address
the Petitioner ground four claim that the State Courts ruling that counsel
abided by the rules of professional conduct was unreasonable in light of
evidence presented in court. The Magistrate relied on the State order and
state’s response without addressing the facts presented by the Petitioner.
The Petitioner OBJECTS to the Magistrate R+R that does not address his
ground five claim that the State Courts ruling was unreasonable in light of
the evidence presented in court, where counsel conceded he gave bad
advice about sentencing. The Magistrate only reiterated the State Court’s
order without addressing the facts presented by Petitioner.
The Petitioner OBJECTS to the Magistrates R+R that does not address his
ground six claim that the State Court’s ruling, that counsel hired an expert

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witness was unreasonable in light of evidence presented in court. The
Magistrate only relied on false information in the States response and did
not address the facts presented by the Petitioner.
The Petitioner OBJECTS to the Magistrates R+R that does not address
Petitioners ground seven claim that the State Court ruling that counsel hired
an expert witness was an unreasonable application of clearly established
Federal law as decided by the Supreme Court. The R+R does not make any
reference to this fact.
(ECF No. 40 at 2–8 (errors in original).)
To a large extent, these objections are conclusory and do not point the Court to
any specific error in the Magistrate Judge’s reasoning or analysis, but merely restate
Petitioner’s claims and baldly assert that the Magistrate Judge drew wrong conclusions
after “rel[ying] on false information in the State[’]s response” or failing to “address the
facts presented by the Petitioner.” (See id.) Nevertheless, the Court will attempt to
address those aspects of Petitioner’s arguments that raise objections which could be
deemed colorably specific.
Where Petitioner attacks the Magistrate Judge’s “re-characterizing” or “rephrasing”
of his claims, the objections are improper and without merit. The Magistrate Judge began
the Discussion section of the Report by stating verbatim all seven Grounds for relief
advanced in Petitioner’s habeas petition. (ECF No. 36 at 8–10.) If, in later sections of the
Report, the Magistrate Judge condensed her references to the core substance of each
Ground, it is by no means improper, but a typical shorthand way of referring to the central
allegations within each claim. The Court finds that the Magistrate Judge correctly and
accurately dealt with the substance of each Ground in turn, and the objections are
overruled.
Where Petitioner merely disagrees with the Magistrate Judge’s conclusions on

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particular issues (e.g., whether his plea was voluntary, whether the infrequency of
counsel’s meetings with Petitioner was ineffective assistance, whether counsel made
sufficient efforts to investigate and challenge the State’s evidence with an expert witness,
etc.), the objections are unavailing. See United States v. Brooks, No. 3:19-cr00211-FDWDCK, 2022 WL 1184368, at *2 (W.D.N.C. Apr. 21, 2022) (noting that “an ‘objection’ that
does nothing more than state a disagreement with a magistrate’s suggested resolution,
or simply summarizes what has been presented before, is not an ‘objection’ as that term
is used in this context” (cleaned up)). The Court finds that the Magistrate Judge fairly and
accurately summarized the evidence from the PCR proceedings and correctly determined
that the PCR Court was not unreasonable in its factual findings or legal conclusions. The
objections are overruled.
Petitioner’s reliance on Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992) is misplaced.
In Clisby the Eleventh Circuit Court of Appeals held that the habeas petitioner was not
deprived of his due process right to competent psychiatric assistance for a capital
sentencing proceeding, and that a district court must resolve all claims for relief raised in
a petition for writ of habeas corpus, regardless of whether habeas relief is granted or
denied. Id. at 934, 935–36. Petitioner’s assertion that Magistrate Judge West did not
resolve all of the claims in his petition is both conclusory and incorrect. Clisby offers him
no assistance and the objection is overruled.
Where Petitioner argues the Magistrate Judge did not adequately address his
Ground Five claim that counsel gave bad advice about the length of sentence, his
assertions miss the mark. Magistrate Judge West explained that counsel’s testimony at
the PCR hearing reflected: (1) when the case was called for trial, he spoke with Petitioner

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and informed him that they did not get a favorable judge, and if they lost at trial Petitioner
could potentially get a life sentence; (2) after several discussions with the solicitor’s office,
counsel was able to obtain an agreement that reduced the charge from murder to
voluntary manslaughter with a fifteen-year sentence; (3) one of the reasons the solicitor
agreed to such a low sentence, even though the solicitor wanted a murder charge, was
because one of the State’s principal investigators on the case died while the case was
pending; and (4) Petitioner did not want the deal and wanted a better deal, but counsel
told Petitioner that was the best deal he could get and they could ask for a continuance
and go to trial. (ECF No. 36 at 24 (citations omitted).) Petitioner’s assertions that “counsel
advised him the plea would get him home in ten to twelve years which was erroneous
because the minimum is twelve years nine months,” and that “counsel conceded this
issue and counsel notes corroborate petitioner’s claim verbatim” (ECF No. 1 at 15), are
not supported by the record. Rather, counsel’s PCR testimony reflects that at some point
in his discussions with Petitioner about negotiating a plea deal he indicated “perhaps[] we
can get to a 12 or 13-year offer,” and “if I can get a 12 offer, perhaps, you can be home
in ten years.” (ECF No. 27-1 at 55.) The remainder of counsel’s PCR testimony about the
sentence negotiation is abundantly clear that the common understanding between the
solicitor, counsel, and Petitioner was that fifteen years was the best deal available. (See
Id. at 53–58.) Thus, Petitioner has not demonstrated that counsel’s performance fell
below an objective standard of reasonableness as to advice regarding the sentence he
would receive, Strickland, 466 U.S. at 687; nor has he demonstrated prejudice in that any
perceived discrepancy in counsel’s explanation of the sentence would have caused
Petitioner to plead not guilty and insist on going to trial, Hill v. Lockhart, 474 U.S. 52, 60

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(1985). Petitioner’s objections as to Ground Five are overruled.
The Court finds that the remainder of Petitioner’s objections are alternatively nonspecific, unrelated to the dispositive portions of the Report, or merely restate his claims.
(See ECF No. 40 at 2–8.) Petitioner’s objections are, therefore, overruled in toto.
CONCLUSION
After de novo review of the relevant materials and law, and for the reasons set
forth above, the Court ADOPTS the Report (ECF No. 36) of the Magistrate Judge and
incorporates it herein. Accordingly, Petitioner’s objections (ECF No. 40) are
OVERRULED, Respondent’s motion for summary judgment (ECF No. 28) is GRANTED,
Petitioner’s § 2254 habeas petition (ECF No. 1) is DENIED, and a certificate of
appealability is denied. 2
IT IS SO ORDERED.
/s/ Bruce Howe Hendricks
United States District Judge
September 15, 2022
Charleston, South Carolina

Title 28, Section 2253 provides in relevant part, that, “Unless a circuit justice or judge issues a certificate
of appealability, an appeal may not be taken to the court of appeals from (A) the final order in a habeas
corpus proceeding in which the detention complained of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.” 28 U.S.C. § 2253(c)(1). A prisoner satisfies this
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 the case sub judice, the legal standard for a
certificate of appealability has not been met.
2

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