Baylock v. McFadden

Filing 25

ORDER RULING ON REPORT AND RECOMMENDATION for 17 . It is ORDERED that Respondents motion for summary judgment, docket number 9, is granted, and Baylocks § 2254 petition, docket number 1, is denied. It is further ORDERED that a certificate of appealability is denied because Baylock has failed to make a substantial showing of the denial of a constitutional right. Signed by Honorable Henry M Herlong, Jr on 7/27/2017. (kric, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Elijah Solomon Baylock, Jr.,
Petitioner,
vs.

Joseph McFadden as Warden of Lieber
Correctional Institution,
Respondent.

)
)
)
)
)
)
)
)
)
)
)

C.A. No. 6:16-3482-HMH-KFM

OPINION & ORDER

This matter is before the court for review of the Report and Recommendation of United
States Magistrate Judge Kevin F. McDonald, made in accordance with 28 U.S.C. § 636(b)(1)
and Local Civil Rule 73.02 for the District of South Carolina.1 Elijah Solomon Baylock, Jr.
(“Baylock”) is a state prisoner seeking habeas corpus relief pursuant to 28 U.S.C. § 2254. In his
Report and Recommendation, Magistrate Judge McDonald recommends granting the
Respondent’s motion for summary judgment and denying Baylock’s petition.
I. FACTUAL AND PROCEDURAL BACKGROUND
Baylock is currently incarcerated at Lieber Correctional Institution, a South Carolina
Department of Corrections (“SCDC”) facility. In September 2010, Baylock was indicted in
South Carolina state court for two counts of criminal sexual conduct with a minor first degree
1

The recommendation has no presumptive weight, and the responsibility for making a
final determination remains with the United States District Court. See Mathews v. Weber,
423 U.S. 261, 270 (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.
The court may accept, reject, or modify, in whole or in part, the recommendation made by
the magistrate judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).
1

and two counts of committing a lewd act on a minor. (Mot. Summ. J. Ex. 1 (App’x 443-46),
ECF No. 8-1.) After a jury trial, Baylock was found guilty of one count of criminal sexual
conduct with a minor first degree and one count of committing a lewd act on a minor. (Id. Ex. 1
(App’x 285-86), ECF No. 8-1.) Baylock was sentenced to 25 years’ imprisonment for criminal
sexual conduct and 15 years’ imprisonment for committing a lewd act on a minor, such terms to
be served concurrently. (Id. Ex. 1 (App’x 299-300), ECF No. 8-1.)
On April 28, 2011, Baylock appealed his conviction. (Id. Ex. 2 (Not. of App.), ECF
No. 8-2.) The South Carolina Court of Appeals affirmed Baylock’s conviction on August 8,
2012. (Id. Ex. 1 (App’x 335-36), ECF No. 8-2.) On April 10, 2013, Baylock filed an
application for post-conviction relief (“PCR”), raising ineffective assistance of counsel and
prosecutorial misconduct claims. (Mot. Summ. J. Ex. 1 (App’x 341-36), ECF No. 8-1.) An
evidentiary hearing was held on May 21, 2014. (Id. Ex. 1 (App’x 356-420), ECF No. 8-1.) On
August 25, 2014, the PCR court dismissed Baylock’s PCR application. (Id. Ex. 1 (App’x 42142), ECF No. 8-1). Baylock filed a petition for writ of certiorari with the South Carolina
Supreme Court on October 6, 2014. (Id. Ex. 3 (Pet. for Writ of Cert.), ECF No. 8-3.) On
October 21, 2015, the South Carolina Supreme Court granted Baylock’s petition for writ of
certiorari. (Id. Ex. 6 (Oct. 21, 2015 Order), ECF No. 8-6.) However, on June 29, 2016, the
Supreme Court dismissed the writ of certiorari as improvidently granted. (Mot. Summ. J. Ex. 7,
(Jun. 29, 2016 Order), ECF No. 8-7.)

2

Baylock filed the instant § 2254 petition on October 25, 2016,2 raising the following
grounds for relief:
Ground One: Petitioner Elijah Baylock’s constitutional right to effective
assistance of counsel was denied when his trial counsel failed to object or
properly address testimony regarding the prosecution and guilty plea of
Petitioner’s brother, Deandre Baylock.
Ground Two: The trial court’s charge to the jury on corroboration of the
victim’s testimony was an unconstitutional and impermissible comment on the
facts of the case.
(§ 2254 Pet. 20-22, ECF No. 1.) On December 19, 2016, Respondent filed a motion for
summary judgment. (Mot. Summ. J., ECF No. 9.) Baylock responded in opposition on
March 6, 2017. (Resp. Opp’n Mot. Summ. J., ECF No. 14.) On March 13, 2017, Respondent
replied. (Reply, ECF No. 16.) Magistrate Judge McDonald issued a Report and
Recommendation on June 1, 2017, recommending granting Respondent’s motion for summary
judgment and denying Baylock’s petition. (R&R 24, ECF No. 17.) Baylock filed timely
objections to the Report and Recommendation on June 29, 2017. (Objs., ECF No. 22.) On
July 13, 2017, Respondent responded to Baylock’s objections. (Resp. Opp’n Objs., ECF
No. 24.) This matter is ripe for consideration.
II. DISCUSSION OF THE LAW
A. Summary Judgment Standard
Summary judgment is appropriate only “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). In deciding whether a genuine issue of material fact exists, the evidence of the

2

See Houston v. Lack, 487 U.S. 266 (1988).
3

non-moving party is to be believed and all justifiable inferences must be drawn in his favor. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over
facts that might affect the outcome of the suit under the governing law will properly preclude
the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be
counted.” Id. at 248.
A litigant “cannot create a genuine issue of material fact through mere speculation or the
building of one inference upon another.” Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985).
“[W]here the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party, disposition by summary judgment is appropriate.” Monahan v. Cty. of
Chesterfield, Va., 95 F.3d 1263, 1265 (4th Cir. 1996) (internal quotation marks and citation
omitted). “[T]he mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact.” Ballenger v. N.C. Agric. Extension Serv., 815 F.2d
1001, 1005 (4th Cir. 1987) (internal quotation marks and citation omitted).
B. Standard of Review in a § 2254 Petition
In addition to the standard that the court must employ in considering motions for
summary judgment, the court must also consider the petition under the requirements set forth in
28 U.S.C. § 2254. Under § 2254(d),
[a]n application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in the State court proceedings unless the
adjudication of the claim – (1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or (2) resulted in a

4

decision that was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.
As “a determination of a factual issue made by a State court shall be presumed to be correct,”
the petitioner has “the burden of rebutting the presumption of correctness by clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1). With respect to reviewing the state court’s
application of federal law, “‘a federal habeas court may grant the writ if the state court identifies
the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably
applies that principle to the facts of the prisoner’s case.’” Humphries v. Ozmint, 397 F.3d 206,
216 (4th Cir. 2005) (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). Further, “an
‘unreasonable application of federal law is different from an incorrect application of federal
law,’ because an incorrect application of federal law is not, in all instances, objectively
unreasonable.” Id. (quoting Williams, 529 U.S. at 410). “Thus, to grant [a petitioner’s] habeas
petition, [the court] must conclude that the state court’s adjudication of his claims was not only
incorrect, but that it was objectively unreasonable.” McHone v. Polk, 392 F.3d 691, 719 (4th
Cir. 2004).
C. Objections
Objections to the Report and Recommendation must be specific. Failure to file specific
objections constitutes a waiver of a party’s right to further judicial review, including appellate
review, if the recommendation is accepted by the district judge. See United States v. Schronce,
727 F.2d 91, 94 & n.4 (4th Cir. 1984). In the absence of specific objections to the Report and
Recommendation of the magistrate judge, this court is not required to give any explanation for
adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).

5

Baylock specifically objects that the magistrate judge erred in finding that the PCR court
did not err because counsel was not ineffective for failing to: (1) object to testimony regarding
the guilty plea of Baylock’s brother, Deandre Baylock (“Deandre”); (2) request a curative
instruction regarding the evidence of Deandre’s guilty plea; and (3) object to the solicitor’s
closing statements concerning Deandre’s guilty plea. (Objs. 2-5, ECF No. 22.)
1. Admission of Testimony
Baylock objects that the magistrate judge erred in finding no error in the PCR Court’s
determination that counsel’s failure to object to testimony regarding the conviction of his
brother, Deandre, was based on a valid trial strategy. (Id. at 2-4, ECF No. 22.) In order to
successfully challenge a conviction or sentence on the basis of ineffective assistance of counsel,
Baylock must demonstrate that his counsel’s performance fell below an objective standard of
reasonableness, and that he was prejudiced by his counsel’s deficient performance. See
Strickland v. Washington, 466 U.S. 668, 687 (1984). With respect to the first prong, there is “a
strong presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Id. at 689. In order to prove prejudice, Baylock must “show there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to undermine the confidence
in the outcome.” Id. at 694.
In regard to counsel’s strategy, “[s]tanding alone, unsuccessful trial tactics neither
constitute prejudice nor definitively prove ineffective assistance of counsel.” Bell v. Evatt, 72
F.3d 421, 429 (4th Cir. 1995). “For a lawyer’s trial performance to be deficient, his errors must
have been so serious that he was not functioning as the counsel guaranteed the defendant by the

6

Sixth Amendment.” United States v. Roane, 378 F.3d 382, 404 (4th Cir. 2004) (internal
citations and quotation marks omitted).
Baylock argues that counsel’s failure to object to the testimony of Jakayiah Beaton
(“Beaton”) and Myesha Singleton (“Singleton”) was clearly erroneous because the testimony
regarding Deandre’s guilty plea for sexually assaulting the victim implied that both he and
Baylock sexually assaulted the victim. (Objs. 2-3, ECF No. 22.) Additionally, Baylock argues
that his counsel’s failure to object could not have been the result of trial strategy because
counsel admitted during the PCR hearing that the decision not to object was a mistake. (Id. at 4,
ECF No. 22.) Further, Baylock argues that even if the decision not to object was part of
counsel’s trial strategy, counsel was ineffective because testimony regarding Deandre’s guilty
plea was analogous to admitting the confession of a co-defendant, which the Supreme Court has
found to be prejudicial. See Bruton v. United States, 391 U.S. 123, 132 (1968); Wong Sun v.
United States, 371 U.S. 471, 490-91 (1963).
The PCR Court addressed counsel’s failure to object to testimony regarding Deandre’s
guilty plea and found that counsel was not ineffective because counsel’s decision was based
upon sound trial strategy and that counsel was not ineffective. (Mot. Summ. J. Ex. 1
(App’x 430-34), ECF No. 8-1.) Specifically, the PCR court found:
Counsel was not ineffective for failing to object to this line of testimony. This
Court finds the testimony of both Beaton and Singleton does not appear to
indicate the Applicant’s brother admitted the Applicant’s guilt, but rather that the
Applicant’s brother admitted his own guilt, potential sole responsibility for the
acts and ultimately was convicted after his admission. This Court does not
interpret the testimony of Beaton and Singleton [regarding Deandre’s guilty plea]
as the Applicant’s brother indicating the Applicant’s guilt.
Although this Court finds that Counsel’s testimony is more credible than the
Applicant’s testimony, after exhaustive review of the record, this Court finds that
7

Counsel’s overreaching defense strategy was to attack the credibility of the
victim by highlighting her allegations of assault against multiple people. This
Court finds that the admission of Deandre’s conviction and the accusation
against Katrina Rynes was the subject of the State’s motion in limine. The
Solicitor intended to introduce evidence of the victim’s allegations as a
preemptive measure because Counsel’s articulated . . . theory of the case:
attacking the victim’s credibility by emphasizing the victim’s false allegations.
[sic] Counsel told the court that he and the Solicitor had reached an agreement
regarding the admissibility of the victim’s allegations. However, the court
cautioned Counsel regarding this strategy due to the “all or nothing” nature of the
testimony. Even though Counsel stated during his testimony at the PCR hearing
that in hindsight, he should have made a contemporaneous objection to the
introduction of Deandre’s guilty plea, Counsel was well aware of the
ramifications of his strategy both at the commencement of trial and throughout
the testimony. This Court finds Counsel is not ineffective for employing a
particular defense strategy that, after all the testimony in the record has been
elicited, later becomes ineffectual.
This Court finds Counsel made a strategic decision to elicit testimony about the
accusations against the Applicant’s brother at trial in order to exculpate the
Applicant and consistent with this strategy question the veracity of the victim.
This Court finds after the State presented testimony about the victim’s
allegations against the Applicant’s brother at trial, Counsel effectively in cross
examination effectively used the testimony to the defense’s advantage. This
Court also finds the Applicant was not prejudiced by Counsel’s performance
since based on the testimony elicited by the State from Beaton, trial counsel was
able to elicit testimony from Beaton that the victim had indeed implicated three
(3) different people in alleged sexual abuse.
(Id. Ex. 1 (App’x 432-34), ECF No. 8-1 (internal citations omitted).)
In the instant case, the magistrate judge did not err in finding that the PCR court’s
decision was not contrary to or an unreasonable application of existing federal law. First, the
PCR court properly applied the Strickland standard and found that counsel’s failure to object
was not the result of deficiency or prejudicial. Second, the record supports the PCR court’s
determination.
During the PCR hearing, counsel testified that his strategy was to attack the victim’s
credibility based upon her accusations against multiple people. (Id. Ex. 1 (App’x 385), ECF
8

No. 8-1.) Counsel employed this strategy throughout the trial, beginning with his opening
statement, wherein he told the jury that “what we intend to show you, not only that [victim] is
lying, but that she had motivation to lie.” (Id. Ex. 1 (App’x 73-74), ECF No. 8-1.) To this end,
Baylock’s counsel questioned Beaton about whether the victim had accused multiple people of
sexually assaulting her. (Id. Ex. 1 (App’x 123), ECF No. 8-1.) In response, the solicitor asked
Beaton questions which supported the credibility of the victim’s accusations.
SOLICITOR: In fact, one of the people she said did something to her was
Deandre, [Baylock’s] brother, right?
BEATON: Yes.
SOLICITOR: And Deandre admitted he did it, didn’t he?
BEATON: Yes, he did.
SOLICITOR: And he was convicted for that charge, was he not?
BEATON: Yes, he was.
SOLICITOR: So [the victim] accused this man and his brother of sexually
assaulting her?
BEATON: Yes, she did.
SOLICITOR: And his brother said it was true, didn’t he?
BEATON: Yes, he did.
(Mot. Summ. J. Ex. 1 (App’x 123-24), ECF No. 8-1.) While Baylock contends that this
testimony was prejudicial, the PCR court’s conclusion that Deandre’s guilty plea referred only
to his own guilt is reasonable. Further, during his cross-examination of Singleton, counsel
contrasted the victim’s allegations against Deandre from the allegations against Baylock:
COUNSEL: There was an allegation in 2008. Isn’t that correct? [The victim]
made an allegation in 2008?
9

SINGLETON: About?
COUNSEL: About Deandre?
SINGLETON: Yes, sir.
COUNSEL: When she made that allegation you were in Myrtle Beach. Isn’t that
correct?
SINGLETON: No, that was after we came back.
COUNSEL: Right. Prior, when the incident occurred you were in Myrtle
Beach?
SINGLETON: [Yes.]
***
COUNSEL: And who were you in Myrtle Beach with?
SINGLETON: My fiancé at the time and [Baylock].
COUNSEL: Who did you have babysitting the kids?
SINGLETON: [Baylock’s] ex-girlfriend, Camille.
***
COUNSEL: And [the victim] never told you that [Baylock] did anything to her?
SINGLETON: She was afraid to.
COUNSEL: She never told in 2008.
SINGLETON: She never told me. She only told her stepmother and father. But
she was afraid to tell me.
COUNSEL: And you didn’t know about – you didn’t learn about [Baylock] until
2010.
SINGLETON: Right.
(Id. Ex. 1 (App’x 141-43), ECF No. 8-1.) During the PCR hearing, counsel stated that this was
an intentional strategy because he believed he could use the information regarding Deandre’s
conviction to his advantage. (Id. Ex. 1 (App’x 386), ECF No. 8-1.) Although counsel’s strategy

10

was unsuccessful, the PCR court’s conclusion that counsel was not deficient is reasonable.
Further, Baylock was not prejudiced by counsel’s failure to object to testimony regarding
Deandre’s guilty plea. Highlighting evidence regarding Deandre’s guilt was beneficial to
counsel’s trial strategy of discrediting the victim’s allegations against Baylock because it
contrasted her contemporaneous and accurate allegations against Deandre from the allegations
against Baylock which were made several years after the fact.
Lastly, Baylock’s argument equating this evidence to the confession of a co-defendant is
misplaced. Confessions of a co-defendant are inadmissible because of the substantial risk that
the jury will conclude that both defendants are guilty without allowing the non-confessing
defendant the opportunity to confront his co-defendant. Bruton, 391 U.S. at 125. Here, Baylock
was not implicated by testimony regarding Deandre’s guilty plea or a co-defendant. Therefore,
counsel was not ineffective for failing to object based upon Bruton and Wong Sun. Based on
the foregoing, the magistrate judge did not err in finding that the PCR court’s decision was not
contrary to or an unreasonable application of existing law. As a result, Baylock’s objection is
without merit.
2. Curative Instruction
Baylock objects that the magistrate judge erred in finding that the PCR Court’s
determination that counsel was not ineffective for failing to request a curative instruction was
not contrary to or an unreasonable application of existing law. Specifically, Baylock argues that
a curative instruction was necessary because Baylock was unreasonably prejudiced by Beaton’s
and Singleton’s testimony regarding Deandre’s guilty plea. (Objs. 4, ECF No. 22.) Further,
Baylock argues that no reasonable attorney would fail to request a curative instruction because it

11

is presumed that a jury will follow instructions regarding evidence. (Id., ECF No. 22 (citing
Green v. Miller, 483 U.S. 756, 766 n.8 (1987)).)
Here, the PCR court analyzed counsel’s performance under Strickland and found that
the testimony that Applicant complains of regards [sic] the bad acts, prior
convictions, and otherwise [sic] character evidence of the Applicant’s brother,
not the Applicant himself. Further, the Applicant has provided the court with no
legal authority supporting his contention that Counsel should have suggested and
the trial court should have given a limiting instruction or declared a mistrial upon
the admission of testimony regarding the Applicant’s brother’s criminal case.
This Court finds the Applicant was not prejudiced because it is unlikely a
mistrial would have been granted based on this testimony. This Court also finds
it is unlikely a curative instruction would have been beneficial to the Applicant
since curative instructions at times tend to highlight errors to the jury.
Accordingly, this Court can discern no deficiencies in Counsel’s performance in
this regard; therefore, this Court finds the Applicant was not prejudiced. This
Court finds the Applicant has failed to carry his burden of proving counsel’s
performance was ineffective in this regard.
(Mot. Summ. J. Ex. 1 (App’x 434-35), ECF No. 8-1 (footnote and internal citations omitted).)
Upon review, the PCR court’s decision is supported by the record. First, as discussed
previously, Baylock was not prejudiced by testimony regarding Deandre’s guilty plea because it
reasonably could have aided counsel’s valid trial strategy. Second, even if Baylock were
prejudiced by admission of this testimony, counsel was not ineffective for failing to request a
curative instruction. The Fourth Circuit, in addressing an ineffective assistance of counsel
claim, has noted that “it would have been a reasonable trial strategy to forego an instruction that
would remind the juror of [the prejudicial evidence].” United States v. Harris, No. 00-6610,
2001 WL 288663, at *1 (4th Cir. Mar. 26, 2001) (unpublished). In this case, a reasonable
attorney could conclude that a curative instruction regarding Deandre’s guilty plea would
negatively highlight the testimony. Therefore, the magistrate judge did not err in finding that

12

the PCR court’s determination was not contrary to or an unreasonable application of existing
federal law. As a result, Baylock’s objection is without merit.
3. Solicitor’s Closing Statements
Baylock objects that the magistrate judge erred in finding that the PCR court did not err
in finding that counsel was not ineffective for failing to object to the solicitor’s statements
during her closing argument regarding Deandre’s conviction. Baylock contends that the
solicitor’s references to Deandre’s conviction compounded the prejudice from the improper
admission of this testimony. (Objs. 5, ECF No. 22.)
Under South Carolina law, a solicitor has the right to comment on the testimony given
and offer her opinion on the weight to be given to it. Humphries v. State, 570 S.E.2d 160, 166
(S.C. 2002). In order to merit relief, a comment must “so infect the trial with unfairness as to
make the resulting conviction a denial of due process.” State v. Elkins, 436 S.E.2d 178, 180
(S.C. 1993). Additionally, the trial court has broad discretion to determine the propriety of
closing arguments. State v. Bell, 393 S.E.2d 364, 372 (S.C. 1990).
In the instant case, the PCR court properly addressed counsel’s performance under
Strickland and found that counsel was not deficient. (Mot. Summ. J. Ex. 1 (App’x 439), ECF
No 8-1.) Specifically, the PCR court found that the solicitor’s comments were proper and that
there was no basis for counsel to object. (Id. Ex. 1 (App’x 439), ECF No. 8-1.) Further, the
trial court emphasized that the attorneys’ closing arguments were not evidence and instructed
the jury that “the evidence which you are to consider consists of the testimony of the witnesses
and exhibits that were introduced through their testimony, nothing else.” (Id. Ex. 1 (App’x 226,

13

255), ECF No. 8-1.) Lastly, the PCR court found that Baylock did not suffer prejudice in light
of the overwhelming evidence against him. (Id. Ex. 1 (App’x 442), ECF No. 8-1.)
Upon review, the record supports the PCR court’s determination. During her closing,
the solicitor stated:
Now, when we began this process, [counsel] told you that they were going to
show you that [victim] was lying, and that she had a motivation to lie. What
happened with that? Was there any evidence at all that [victim] was lying?
Any?
What about a motivation? That child got up here and told you details a child
should never know, never. She knew them.
***
Furthermore, she also was molested by the defendant’s brother. What do we
know about that? He agrees with [the victim]. It happened. And it did happen.
Why would she tell the truth about one brother and not the other? It just doesn’t
make any sense.
And so that really never came about, did it? Now let’s talk about that. When
[the victim] was up here, notice no questions were asked of her about the other
allegation, none. So you never got to hear her explain what happened with
Deandre.
After she leaves the stand they start throwing stuff out. It’s kind of like a quick
jab and a retreat to the corner. They wanted you to know that she made another
allegation. But what they didn’t want you [to] know and what they didn’t ask
was what happened with that allegation.
No, I had to come back up here and say “didn’t he admit it and then go [plead]
guilty?” I mean that’s only half the truth, and that’s really not what we’re here
for. We’re here for all the truth.
(Mot. Summ. J. Ex. 1 (App’x 227-29), ECF No. 8-1.) Viewed in context, the solicitor’s closing
argument was designed to properly rebut counsel’s theory that the victim was not credible
because she had accused three different people of sexually assaulting her. Further, the
solicitor’s arguments make it clear that Deandre’s confession concerned only his actions.
14

Therefore, the magistrate judge did not err in finding that the PCR court’s decision that counsel
was not ineffective for failing to object to the solicitor’s closing argument was not contrary to or
an unreasonable application of existing federal law. As a result, Baylock’s objection is without
merit.
Therefore, after a thorough review of the Report and Recommendation and the record in
this case, the court adopts Magistrate Judge McDonald’s Report and Recommendation and
incorporates it herein.
It is therefore
ORDERED that Respondent’s motion for summary judgment, docket number 9, is
granted, and Baylock’s § 2254 petition, docket number 1, is denied. It is further
ORDERED that a certificate of appealability is denied because Baylock has failed to
make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.

s/Henry M. Herlong, Jr.
Senior United States District Judge
Greenville, South Carolina
July 27, 2017

NOTICE OF RIGHT TO APPEAL
The Petitioner is hereby notified that he has the right to appeal this order within thirty
(30) days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate
Procedure.

15