Whitmore v. Mauney
Filing
53
ORDER RULING ON REPORT AND RECOMMENDATION 48 . The court ACCEPTS the Report of the magistrate judge (ECF No. 48). It is therefore ordered that Respondents Motion for Summary Judgment (ECF No. 23) is GRANTED and Petitioners Mo tion to be Released or Moved (ECF No. 16), Motion for More Definite Statement (ECF No. 29), Motion for Relief from Judgment under Rule 60(b)(2)(3)(4) (ECF No. 40), and Motion for Relief from Judgment or Order under Rule 60(b)(4) (ECF No. 41) are DENIED and this action (ECF No. 1) is DISMISSED. A certificate of appealability is denied. Signed by Honorable J Michelle Childs on 9/19/2014. (kric, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Kenneth Whitmore,
)
)
Petitioner,
)
)
v.
)
)
R.H. Mauney, Warden,
)
)
Respondent.
)
____________________________________)
Civil Action No. 6:13-cv-03217-JMC
ORDER AND OPINION
Petitioner Kenneth Whitmore (“Petitioner”) filed this pro se Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254, alleging a lack of probable cause against Petitioner, due
process violations under the Sixth and Fourteenth Amendments, and ineffective assistance of
counsel. (ECF No. 1.) This matter is before the court on Respondent R.H. Mauney, Warden of
Livesay Correctional Institution’s (“Respondent”) Motion for Summary Judgment (ECF No. 23)
and Petitioner’s Motion to be Released or Moved (ECF No. 16), Motion for More Definite
Statement (ECF No. 29), Motion for Relief from Judgment under Rule 60(b)(2)(3)(4) (ECF No.
40), and Motion for Relief from Judgment or Order under Rule 60(b)(4) (ECF No. 41).
In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, the matter was referred to
United States Magistrate Judge Kevin F. McDonald for pre-trial handling. On June 30, 2014, the
magistrate judge issued a Report and Recommendation (“Report”) recommending the court grant
Respondent’s Motion for Summary Judgment and deny Petitioner’s motions. (ECF No. 48.)
This review considers Petitioner’s Specific Objection to Report of Magistrate Judge
(“Objections”), filed July 9, 2014. (ECF No. 50.) For the reasons set forth herein, the court
ACCEPTS the magistrate judge’s Report. The court thereby GRANTS Respondent’s Motion
for Summary Judgment (ECF No. 23) and DENIES Petitioner’s Motion to be Released or
1
Moved (ECF No. 16), Motion for More Definite Statement (ECF No. 29), Motion for Relief
from Judgment under Rule 60(b)(2)(3)(4) (ECF No. 40), and Motion for Relief from Judgment
or Order under Rule 60(b)(4) (ECF No. 41).
FACTUAL AND PROCEDURAL BACKGROUND
The court concludes upon its own careful review of the record that the factual and
procedural summation in the magistrate judge’s Report is accurate, and the court adopts this
summary as its own. However, a recitation of the relevant facts and procedural history is
warranted.
Petitioner is incarcerated at Livesay Correctional Institution within the South Carolina
Department of Corrections. (ECF No. 1 at 1.) In October 2006, a Greenville County grand jury
indicted Petitioner for one count of armed robbery and one count of possession of a weapon
during the commission of a violent crime. (ECF No. 1-4 at 2.) A jury convicted Petitioner of
both charges on January 22, 2008. (ECF No. 48 at 1.) Petitioner filed a direct appeal on January
30, 2008, asserting one argument: The trial judge erred in denying Petitioner’s motion for a
directed verdict on the basis of an unreliable identification. (Id. at 3.)
The South Carolina
Court of Appeals dismissed the appeal in an unpublished opinion on November 5, 2009. (Id.)
On April 12, 2010, Petitioner filed an Application for Post Conviction Relief (“PCR”)
alleging ineffective assistance of trial counsel, procedural due process violations, and malicious
prosecution. (Id. at 4.) Petitioner raised eleven claims in his PCR application: (1) counsel failed
by not giving Petitioner the motion of discovery and indictment before his trial, (2) trial counsel
was ineffective in failing to communicate with Petitioner while he was out on bail, (3) counsel
failed to effectively represent Petitioner by failing to adequately examine and investigate alibi
witnesses, (4) counsel was ineffective by failing to object to a motion to suppress testimony
2
about a weapon, (5) counsel was ineffective by failing to advise the jury in closing arguments
that the weapon used in the robbery was never found and never admitted into evidence at trial,
(6) counsel was ineffective in failing to look at the arrest warrant that was certified for service,
which the judge did not sign, (7) counsel was ineffective in that he failed to adequately cross
examine Officer J.W. Ard as to whom he verified as the driver of Petitioner’s vehicle, (8)
“suggestive and conducive to irreparable mistaken identification” resulted in a due process
violation, (9) counsel was ineffective in not verifying the citizenship status of the victim, (10)
counsel was ineffective in initially telling Petitioner not to testify and then telling Petitioner to
testify after speaking with the solicitor, and (11) malicious prosecution. (Id.) On June 10, 2010,
Petitioner filed an amended and supplemental pleading to his PCR application, asserting three
additional claims: (1) trial counsel was ineffective for failing to litigate an illegal search and
seizure in violation of the Fourth Amendment, (2) actual innocence, and (3) Officer Jonathan
Ard committed a “sham legal process” by submitting false evidence in violation of due process
rights under the Fourteenth Amendment. (Id.) After an evidentiary hearing on May 12, 2011,
the PCR court filed an order of dismissal on July 6, 2011. (Id. at 5.) The PCR court found
Petitioner’s counsel to be more credible and found that Petitioner had failed to meet his burden
of proving counsel was ineffective or prove he was prejudiced by counsel’s performance. (Id. at
6-8.)
Petitioner filed an appeal of the PCR dismissal via a Johnson petition,1 alleging the PCR
judge erred in refusing to find counsel ineffective for failing to fully investigate alibi witnesses
and failing to seek funding to hire an investigator to locate the witnesses. (Id. at 9.) Petitioner
1
The Supreme Court of South Carolina “approved the withdrawal of counsel in meritless postconviction appeals, provided the procedures outlined in Anders v. California, 386 U.S. 738, 87 S.
Ct. 1396, 18 L.Ed.2d 493 (1967), were followed.” Johnson v. State, 294 S.C. 310, 310 (1988).
3
also filed a pro se petition for writ of certiorari, asserting four arguments: (1) the PCR court erred
in finding that his claim of trial counsel’s failure to investigate and argue the issue of an illegal
search was without merit, (2) the PCR court erred in finding that trial counsel testified that he
and Petitioner had several meetings prior to trial during which they discussed discovery
materials, the charges, and Petitioner’s version of events, (3) the PCR court erred in finding that
Petitioner failed to meet his burden of proving counsel should have brought up the issue of the
victim’s citizenship at trial, and (4) the PCR court erred in finding that Petitioner failed to meet
his burden of proving trial counsel should have brought up the issue of the suspect vehicle’s
license plate number. (Id.) The South Carolina Supreme Court transferred the appeal to the
South Carolina Court of Appeals on July 24, 2012. (Id.) On October 21, 2013, the South
Carolina Court of Appeals denied the petition for writ of certiorari. (Id.) The remittitur was
issued on November 6, 2013. (Id.)
Petitioner filed his Petition on November 26, 2013. (ECF No. 1.) Petitioner alleges three
grounds for habeas relief: (1) “Probable cause was never introduce[d] against the petitioner,” (2)
violations of due process rights under the Sixth and Fourteenth Amendments due to Officer
Jonathan Ard submitting false evidence, and (3) ineffective assistance of counsel. (Id. at 5-8.)
Petitioner alleges several facts under Ground Three, which the magistrate judge organized as
seven claims: (1) counsel failed to object and raise the issue that no piece of paper with
Petitioner’s tag number was ever produced, (2) counsel made no substantial investigation into
several lines of defense, including investigating alibi witnesses, (3) counsel should have
scheduled a preliminary hearing for Petitioner to review prosecution’s evidence, (4) counsel had
no contact with Petitioner during the 18 months Petitioner was out on bond, but only met with
Petitioner the day before the trial, (5) the state violated Petitioner’s right to effective assistance of
4
counsel when the solicitor spoke to counsel at lunch during the trial, after which counsel changed
his mind regarding Petitioner testifying, (6) illegal seizure pursuant to the Fourth Amendment in
which officers entered Petitioner’s home without a search warrant and no evidence was available
to support probable cause to obtain a warrant, (7) counsel should have scheduled a preliminary
hearing to suppress evidence that was not found or produced and was ineffective for “not
objecting to the weapon during trial, this evidence has never existed. Petitioner has always
claimed his actual innocence.” (See ECF No. 48 at 16, 22-25; ECF No. 1 at 8, 19-27.)
On January 31, 2014, Petitioner filed a Motion to be Released or Moved requesting he be
released from prison on personal recognizance or be moved to Greenville County to work as an
electrician for the county. (ECF No. 16.) On February 27, 2014, Respondent filed a Motion for
Summary Judgment (ECF No. 23) and a Return and Memorandum in Support of the Motion
(ECF No. 22). The next day, the magistrate judge issued a Roseboro Order2 advising Petitioner
of the importance of the motion and his need to file an adequate response. (ECF No. 26.) On
March 6, 2014, Petitioner filed a Motion for More Definite Statement requesting “a definite
statement on the ground Petitioner made to this Honorable Court. Petitioner has not received any
documentation that he erred in the grounds presented.” (ECF No. 29.) On March 13, 2014,
Petitioner filed a Response in Opposition to the Motion for Summary Judgment, which included
a request for an evidentiary hearing for authentication of evidence and production of original
pieces of evidence under Federal Rules of Evidence 901 and 1002. (ECF No. 33.) On May 8,
2014, Petitioner filed a Motion for Relief from Judgment or Order under Rule 60(b)(2)(3)(4),
requesting relief for judgment due to his claim he was never indicted, and requesting
2
The order was entered in accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
which requires the court to provide an explanation of dismissal or summary judgment procedures
to pro se litigants.
5
compensation for lost wages and punitive damages. (ECF No. 40.) Petitioner filed a second
Motion for Relief from Judgment or Order under Rule 60(b)(4) on May 15, 2014, alleging a lack
of probable cause and requesting immediate release and compensation for lost wages and
punitive damages, on the grounds of “neglect and criminal coercion, by falsifying the record,” by
Officer Ard. (ECF No. 41.) Respondent filed two Responses in Opposition to Motions for
Relief from Judgment on May 27, 2014. (ECF Nos. 42 and 44.) On June 10, 2014, Petitioner
filed a Reply to Respondent’s Responses. (ECF No. 46.) The magistrate judge issued the Report
on June 30, 2014, recommending granting Respondent’s Motion for Summary Judgment and
denying Petitioner’s motions. (ECF No. 48.)
In the report, the magistrate judge found Petitioner has exhausted both his direct appeal
remedies and post-conviction remedies in state court. (Id. at 14-15.) In addition, the magistrate
judge found that Petitioner’s claim in Ground Two of his Petition and Claims Three, Five, and
Seven in Ground Three are procedurally barred from federal habeas review, as Petitioner had not
raised these claims at the proper point in either his direct appeal or PCR proceedings. (Id. at 1516.) A petitioner is barred from raising issues in a federal habeas corpus petition that he has
previously failed to raise in state court proceedings that are now foreclosed due to exhaustion.
(Id. at 15.) A petitioner who has bypassed his state remedies by failing to raise them at the
proper time cannot then have those claims reviewed by the federal courts. (Id., citing Smith v.
Murray, 477 U.S. 527, 533 (1986).) The magistrate judge further found that Petitioner has not
shown cause and prejudice, nor made a showing of actual innocence, to excuse the procedural
bar against Ground Two and Ground Three claims Three, Five, and Seven. (Id. at 17.)
On the merits of Ground One, the magistrate judge found that Petitioner’s claim is not
available for federal habeas review, as Petitioner had the opportunity to raise the issue during the
6
pre-trial phase or at trial, and failed to do so. (Id. at 21.) The magistrate judge reasoned that
habeas corpus relief “is not available for Fourth Amendment claims where the prisoner has a full
and fair opportunity to litigate these claims in state court.” (Id. at 20, citing Stone v. Powell, 428
U.S. 465, 481-82 (1976).) Further, the magistrate judge found, the fact that an indictment had
been issued for the charges against Petitioner is conclusive to establish probable cause. (Id. at
21, citing Rhyne v. Warden of Tyger River Corr. Inst., 2008 WL 1930040 at *10 (D.S.C. Apr. 29,
2008).) On each of the remaining claims in Ground Three, the magistrate judge found that
Petitioner cannot show the PCR court made an unreasonable determination of the facts in regards
to counsel’s performance during the pre-trial process and at trial, and thus he cannot now show
his trial counsel was ineffective. (Id. at 22-25.)
The magistrate judge also found that Petitioner’s Rule 60 Motions (ECF Nos. 40, 41)
should be denied. (ECF No. 48 at 28-29.) The magistrate judge reasoned that Petitioner’s
arguments that he was not indicted due to a lack of a grand jury transcript was without merit, as
an indictment was issued on October 17, 2006. (Id. at 28, see also, ECF No. 1-4 at 2.) Further,
the magistrate judge found Petitioner cannot set forth facts that he is entitled to relief regarding
his claims that there was no probable cause to arrest him. (ECF No. 48 at 28.) “A habeas
petitioner must set forth specific allegations ‘show[ing] reason to believe that the petitioner may,
if the facts are fully developed, be able to demonstrate that he is entitled to relief.” (Id., quoting
Bracy v. Gramley, 520 U.S. 899, 908-09 (1997).) The magistrate judge also found Petitioner is
not entitled to punitive damages as “[m]onetary damages are not available in a habeas corpus
action.” (Id. at 29, citing Preiser v. Rodriguez, 411 U.S. 475, 494 (1973).) Nor is Petitioner
entitled to a federal investigation, the magistrate judge found, as a private citizen does not have a
judicially cognizable interest in the prosecution of another person. (Id., citing Linda R.S. v.
7
Richard D., 410 U.S. 614, 619 (1973).) Finally, the magistrate found that Petitioner’s request for
an evidentiary hearing should be denied, as “[a]n evidentiary hearing is not required when a
petitioner’s claims have been adjudicated in state court.” (Id. at 30.)
Petitioner timely filed his Objections (ECF No. 50) to the Report on July 9, 2014.
STANDARD OF REVIEW
The magistrate judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1) and
Local Civil Rule 73.02 for the District of South Carolina. The magistrate judge makes only a
recommendation to this court.
The recommendation has no presumptive weight.
The
responsibility to make a final determination remains with this court. See Matthews v. Weber, 423
U.S. 261, 270-71 (1976). This court is charged with making a de novo determination of those
portions of the Report to which specific objections are made, and the court may accept, reject, or
modify, in whole or in part, the magistrate judge’s recommendation, or recommit the matter with
instructions. See 28 U.S.C. § 636 (b)(1).
Objections to a Report and Recommendation must specifically identify portions of the
Report and the basis for those objections. Fed. R. Civ. P. 72(b). “[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
recommendation.’” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 316 (4th Cir. 2005)
(quoting Fed. R. Civ. P. 72 advisory committee’s note). Failure to timely file specific written
objections to a Report will result in a waiver of the right to appeal from an Order from the court
based upon the Report. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 155 (1985); Wright
v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir.
8
1984).
If the petitioner fails to properly object because the objections lack the requisite
specificity, then de novo review by the court is not required.
Habeas corpus petitions filed after April 26, 1996, when the Antiterrorism and Effective
Death Penalty Act (“AEDPA”) was enacted, fall under the AEDPA’s provisions. Lindh v.
Murphy, 521 U.S. 320, 326 (1997). Under the AEDPA, claims adjudicated on the merits in a
state court proceeding cannot be the basis for federal habeas corpus relief unless the state court’s
decision was “contrary to, or involved in an unreasonable application of” clearly established
federal law as decided by the United States Supreme Court, or unless the decision “was based on
an unreasonable determination of the facts in light of the evidence presented in the state court
proceeding.” 28 U.S.C. § 2254(d). “[A] determination of a factual issue made by a State court
shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). Claims made in a federal habeas
corpus petition that rest solely upon interpretation of state law are not cognizable on federal
review. Wright v. Angelone, 151 F.3d 151, 157 (4th Cir. 1998). “[I]f the error committed … [is]
merely related to a State procedural question, the issue may not be reached in a federal habeas
corpus petition unless the alleged error constituted ‘a fundamental defect which inherently results
in a complete miscarriage of justice,’ or ‘exceptional circumstances where the need for the
remedy afforded by the writ of habeas corpus is apparent.’” Id. at158, quoting Hill v. United
States, 368 U.S. 424, 428, (1962).
As Petitioner is a pro se litigant, the court is required to liberally construe his arguments.
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The court addresses those arguments
that, under the mandated liberal construction, it has reasonably found to state a claim. Barnett v.
Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999).
9
ANALYSIS
Procedural Bar
Although Petitioner reiterates his previously stated arguments on the merits of his claims
in Ground Two and Ground Three Claims Three and Five, Petitioner offers no objection to the
portion of the Report finding these claims to be procedurally barred and makes no mention of
Ground Three Claim Seven in his Objections at all.
In the absence of objections to the
magistrate judge’s Report, this court is not required to provide an explanation for adopting the
recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). Rather, “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, 416 F.3d at 315. Furthermore, failure to file specific
written objections to the Report results in a party’s waiver of the right to appeal from the
judgment of the District Court based upon such recommendation. 28 U.S.C. § 636(b)(1);
Thomas, 474 U.S. 140; Wright, 766 F.2d 841; Schronce, 727 F.2d 91. Therefore, after a
thorough and careful review of the Report and the record regarding this issue, the court finds the
Report provides an accurate summary of the facts and law and adopts the magistrate judge’s
recommendation.
Merits
In the portions of his Objections regarding the magistrate judge’s findings on the merits
of Petitioner’s claims in Ground One and Ground Three Claims One, Two, Four, and Six,
Petitioner’s Objections lack the requisite specificity required by Federal Rule of Civil Procedure
72(b). Petitioner’s arguments either repeat assertions he has made throughout the pleadings,
which were addressed by the magistrate judge in the Report, or offer unsupported conclusory
10
statements. “Mere unsupported speculation . . . is not enough to defeat a summary judgment
motion.” Ennis v. Nat’l Ass’n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). Since
Petitioner failed to properly object to the Report with specificity, the court does not need to
conduct a de novo review and instead must “only satisfy itself that there is no clear error on the
face of the record in order to accept the recommendation.” Diamond, 416 F.3d at 315. The court
does not find clear error in this portion of the Report. Petitioner fails to present any facts
showing he had cause for the procedural default, nor can he present any facts to establish
prejudice. In addition, Petitioner can offer no more than his unsupported declarations of actual
innocence to demonstrate a miscarriage of justice.
Therefore, the court accepts the
recommendation of the magistrate judge.
Inasmuch as Petitioner has made any non-repetitive arguments, he fails to support his
claims. Petitioner argues that the magistrate judge erred in finding that Petitioner has had a “full
and fair opportunity” to litigate the issue of probable cause, as his requests for a preliminary or
evidentiary hearing have been denied.
(ECF No. 50 at 3.)
Petitioner, however, had the
opportunity to raise the issue at the pre-trial or trial phases of his proceedings, and failed to do
so. To the extent that this may have been the fault of Petitioner’s trial counsel, Petitioner has
also had the opportunity to raise this alleged failure on counsel’s part in his PCR proceedings and
had his claims denied.
Petitioner additionally challenges the validity of the sentence sheet, as neither he nor his
trial counsel signed it. (Id. at 4, see also ECF No. 22-2 at 50-51.) This claim involves an
interpretation of state law, and is therefore not cognizable on federal habeas review. Wright, 151
F.3d at 157. Further, Petitioner can offer no facts to show that any alleged state procedural error
resulted in a “complete miscarriage of justice.” See Hill, 368 U.S. at 428.
11
As such, Petitioner cannot make a showing on the merits of his non-barred claims and the
court adopts the magistrate judge’s recommendation.
Subject Matter Jurisdiction
In the portion of his Objections regarding subject matter jurisdiction, Petitioner again
offers only repetitive arguments he previously presented to the court or makes challenges to
procedures under state law, which are not cognizable under federal habeas review. Wright, 151
F.3d at 157. Since Petitioner failed to properly object to the Report with specificity, the court
does not need to conduct a de novo review and instead must “only satisfy itself that there is no
clear error on the face of the record in order to accept the recommendation.” Diamond, 416 F.3d
at 315. The court does not find clear error and accepts the recommendation of the magistrate
judge.
Petitioner repeatedly asserts that the state lacked jurisdiction over him for lack of a valid
indictment.
However, he not been able to provide anything beyond his unsubstantiated
accusations that the indictment that Petitioner himself attached to his Petition (ECF No. 1-4 at 2)
is invalid. Petitioner cites to a Greenville County Court of Common Pleas schedule, asserting it
proves a grand jury did not meet the week of October 17, 2006, when his indictment was issued.
(Id. at 1.) This schedule, however, makes no mention of grand juries or when they convened
during the period in question. (Id.) Additional arguments Petitioner puts forth rest solely on
state law interpretation, and therefore federal habeas review is not available for any of these
claims. Further, Petitioner can show no facts that any alleged procedural error under state law
resulted in a “complete miscarriage of justice” that would require federal review. See Hill, 368
U.S. at 428.
12
Rule 60 Motions
In his Objections, Petitioner makes only repetitive arguments and conclusory statements
regarding the magistrate judge’s recommendation to deny Petitioner’s Rule 60 Motions. Since
Petitioner failed to properly object to the Report with specificity, the court does not need to
conduct a de novo review and instead must “only satisfy itself that there is no clear error on the
face of the record in order to accept the recommendation.” Diamond, 416 F.3d at 315. The court
does not find clear error and accepts the recommendation of the magistrate judge.
Petitioner’s arguments in these motions center on his assertion that the state had no
probable cause to arrest him for the armed robbery. However, as the magistrate judge noted, the
indictment against Petitioner conclusively establishes probable cause. (ECF No. 48 at 29, citing
Rhyne, 2008 WL 1930040 at *10.) As discussed, Petitioner’s challenges to the validity of the
indictment have no merit, or rest solely on state law, and are therefore not subject to federal
review.
Punitive Damages and Federal Investigation
Petitioner cites to S.C. Code Ann. § 16-5-60 (West, Westlaw through 2013 Reg. Sess.),
“Suits against county for damages to person or property resulting from violation of person’s civil
rights,” to counter the magistrate judge’s finding that he is not entitled to monetary damages in a
habeas corpus action. (ECF No. 50 at 13.) This statute, however, only establishes rights under
state law and does not establish that Petitioner is entitled to monetary damages under this federal
habeas corpus Petition. As such, the court agrees with the magistrate judge that Petitioner is not
entitled to this remedy under his Petition. (ECF No. 48 at 29.)
Petitioner offers no objection to the magistrate judge’s recommendation that his request
for a federal investigation be denied. In the absence of objections to the Report, this court is not
13
required to provide an explanation for adopting the recommendation and must only satisfy itself
that there is no clear error on the face of the record. See Camby, 718 F.2d at 199; Diamond, 416
F.3d at 315. Therefore, after a thorough and careful review of the Report and the record
regarding this issue, the court finds the Report provides an accurate summary of the facts and
law and adopts the magistrate judge’s recommendation.
Request for Evidentiary Hearing
Petitioner offers no objection beyond a simple statement that he “know[s] the lower
court, the Supreme Court, the Court of Appeals, and this Federal District Court does not have
probable cause to hold him.” (ECF No. 50 at 13.) Since Petitioner failed to properly object to
the Report with specificity, the court does not need to conduct a de novo review and instead must
“only satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.” Diamond, 416 F.3d at 315. The court does not find clear error and accepts the
recommendation of the magistrate judge.
Petitioner has had the opportunity to raise evidentiary and probable cause issues in his
trial, direct appeal, and PCR proceedings, and has done so. As such, the court agrees with the
magistrate judge that this claim has been adjudicated by the state court, and thus an evidentiary
hearing is not required. (ECF No. 48 at 30.)
Additional Motions
Petitioner filed a Motion for a More Definite Statement requesting the court “show where
he erred in his fact finding on the merits.” (ECF No. 29 at 2.) As the Report provided a detailed
analysis of Petitioner’s arguments and asserted facts, the court denies this motion as moot.
Petitioner also filed a Motion to be Released or Moved to Greenville County to work as
an Electrician. (ECF No. 16.) Petitioner filed this Motion pursuant to Federal Rule of Appellate
14
Procedure 23. (Id.) This rule “provides that a prisoner appealing denial of habeas corpus relief
may be released pending a ruling on his appeal if release appears fitting to the court.” United
States v. Nardone, 1988 WL 60788 at *1 (4th Cir. June 6, 1988). As the denial of the Petition
has only just been ordered and the denial is not yet in review, Petitioner is not entitled to action
under this rule and the motion is therefore denied.
CONCLUSION
Based on the aforementioned reasons and a thorough review of the Report of the
magistrate judge and the record in this case, the court ACCEPTS the Report of the magistrate
judge (ECF No. 48). It is therefore ordered that Respondent’s Motion for Summary Judgment
(ECF No. 23) is GRANTED and Petitioner’s Motion to be Released or Moved (ECF No. 16),
Motion for More Definite Statement (ECF No. 29), Motion for Relief from Judgment under Rule
60(b)(2)(3)(4) (ECF No. 40), and Motion for Relief from Judgment or Order under Rule 60(b)(4)
(ECF No. 41) are DENIED and this action (ECF No. 1) is DISMISSED.
Certificate of Appealability
The law governing certificates of appealability 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.
15
IT IS SO ORDERED.
United States District Judge
September 19, 2014
Columbia, South Carolina
16
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