Adams v. Warden Kirkland Correctional Institution

Filing 73

ORDER accepting 65 Report and Recommendation. It is ordered that Respondent's 56 Amended Motion for Summary Judgment is GRANTED and this 1 Petition is DISMISSED. Signed by Honorable J Michelle Childs on 9/23/14. (kmca)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Blair Markeith Adams,

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Petitioner,
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v.
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Warden, Kirkland Correctional Institution, )
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Respondent.
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____________________________________)

Civil Action No. 8:12-cv-02717-JMC

ORDER AND OPINION

Petitioner Blair Markeith Adams (“Petitioner”) filed this pro se Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254 alleging an erroneous ruling by the trial court, lack
of subject matter jurisdiction, ineffective assistance of trial counsel, and ineffective assistance of
Post Conviction Relief counsel. (ECF No. 1.) This matter is before the court on Respondent’s
Amended Motion for Summary Judgment (ECF No. 56).
In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, the matter was referred to
United States Magistrate Judge Jacquelyn D. Austin for pre-trial handling. On May 8, 2014, the
magistrate judge issued a Report and Recommendation (“Report”) recommending the court grant
Respondent’s Motion and deny the Petition. (ECF No. 65.) This review considers Petitioner’s
Objection to Report and Recommendation for Summary Judgment (“Objections”), filed June 13,
2014, (ECF No. 70) and Supplement (ECF No. 72). For the reasons set forth herein, the court
ACCEPTS the magistrate judge’s Report. The court thereby GRANTS Respondent’s Amended
Motion for Summary Judgment (ECF No. 56) and DENIES the Petition (ECF No. 1).
FACTUAL AND PROCEDURAL BACKGROUND
The facts viewed in the light most favorable to the Petitioner are discussed in the Report.
(See ECF No. 65.) The court concludes, upon its own careful review of the record, that the
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magistrate judge’s factual summation is accurate and incorporates it by reference. The court will
only recite herein facts pertinent to the analysis of Petitioner’s Objections.
Petitioner is incarcerated at McCormick Correctional Institution within the South
Carolina Department of Corrections (“SCDC”). (ECF No. 65 at 2.) Petitioner was convicted
after a bench trial on October 5, 2006, of trafficking in cocaine. (Id.) He was sentenced to 25
years in prison. (Id. at 3.) Petitioner filed a direct appeal on June 27, 2007. (Id.) The South
Carolina Court of Appeals affirmed the trial court’s decision on March 20, 2008. (Id.) On April
24, 2008, Petitioner filed a pro se application for Post Conviction Relief (“PCR”). (Id.) After an
evidentiary hearing on May 28, 2009, the PCR court denied and dismissed Petitioner’s PCR
application with prejudice on July 24, 2009. (Id. at 4.) Petitioner appealed the decision, which
the South Carolina Supreme Court denied on January 11, 2012, and remitted to the lower court
on January 30, 2012. (Id. at 5.)
Petitioner filed his Petition on September 18, 2012, alleging four grounds: (1) erroneous
ruling by the trial court, (2) lack of subject matter jurisdiction, (3) ineffective assistance of trial
counsel, and (4) ineffective assistance of PCR counsel. (ECF No. 1 at 9, 13, 17, 27.) Included
among several claims by Petitioner under Ground Three, Petitioner alleged his trial counsel was
ineffective for (a) failing to investigate Petitioner’s claim that he did not consent to the search of
his car by failing to interview witnesses and subpoena Officer James’ cell phone records and (b)
failing to introduce dispatch records.1 (Id. at 18-19.) Respondent filed a Motion for Summary
Judgment on February 28, 2013. (ECF No. 28.) This court denied the motion on August 27,

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The magistrate judge outlined 22 claims within Petitioner’s first issue under Ground Three in
his Petition. The magistrate judge listed and labeled each of these claims as (a)-(v). (ECF No.
65 at 7-8.) Although Petitioner does not explicitly label these claims as “Issue #1,” the label
“Issue #2” appears before the final section of supporting facts under Ground Three. (ECF No. 1
at 18, 26.)
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2013, with leave to refile and ordered Respondent to refile the motion with Petitioner’s pro se
response in support of his PCR appeal. (ECF No. 51.) As ordered, Respondent filed an
Amended Motion for Summary Judgment on August 30, 2013. (ECF No. 56.) On September 3,
2013, 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. 57.) Petitioner filed a Response in
Opposition to the Motion on November 4, 2013. (ECF No. 62.) On May 8, 2014, the magistrate
judge issued the Report (ECF No. 65) recommending the court grant Respondent’s Motion and
deny the Petition.
The magistrate judge found many of Petitioner’s claims to be procedurally barred
because they had not been raised at the proper time in the state court appeal and PCR processes.
(Id. at 18-21.)

The magistrate judge further found that Petitioner could not show facts

demonstrating that some objective factor impeded Petitioner’s or counsel’s efforts to comply
with state procedural rules. (Id. at 22-26.) On the merits of Petitioner’s claim that the trial court
erred in denying his motion to suppress evidence seized during a traffic stop, the magistrate
judge found that because Petitioner was afforded an opportunity to litigate the Fourth
Amendment claim at the state level, the issue was not cognizable in a federal habeas petition.
(Id. at 28.) The magistrate judge also found that the PCR court’s determination regarding trial
counsel’s performance was not “contrary to or an unreasonable application of applicable
Supreme Court precedent.” (Id. at 30-33.) Petitioner argues that trial counsel was ineffective for
failing to interview witnesses and subpoena Officer James’ cell phone records and for failing to
introduce dispatch records. (ECF No. 1 at 18-19.) However, the magistrate judge noted, trial

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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.
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counsel had testified at the PCR hearing that his strategy was to argue that the traffic stop was
over once Officer James told Petitioner his license was clear, and therefore everything that
happened afterwards would have been thrown out. (ECF No. 65 at 30.) The PCR court had
found trial counsel’s testimony to be credible. (Id. at 30-31.) Applying the Strickland standard,3
the PCR court found Petitioner could not make a showing that his trial counsel was ineffective.
(Id. at 29, 32.) The PCR court found that counsel had “conducted a proper investigation [and]
was thoroughly competent in their representation” and that “it would be speculative to assume
that the dispatch log would have made a difference in the outcome [of the trial].” (Id. at 29, 31.)
The magistrate judge found that the PCR court determinations were supported by the record. (Id.
at 30, 32.) Finally, the magistrate judge found that Petitioner’s claim of ineffective assistance of
PCR counsel was not a cognizable federal habeas claim. (Id. at 33.)
Petitioner timely filed his Objections to the Report on June 13, 2014, (ECF No. 70) and
filed a Supplement to his Objections on June 23, 2014 (ECF No. 72).
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

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Strickland v. Washington, 466 U.S. 668, 687 (“A convicted defendant’s claim that counsel’s
assistance was so defective as to require reversal of a conviction… has two components. First,
the defendant must show that counsel’s performance was deficient. This requires showing that
counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s errors were so serious
as to deprive the defendant of a fair trial, a trial whose result is reliable.”)
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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.
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.
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).
ANALYSIS
Ineffective Assistance of Counsel Issue 1(a) and 1(b)
Petitioner offers objections only to the magistrate judge’s recommendations regarding
Petitioner’s Ineffective Assistance of Counsel claims in Issue 1(a) (counsel was ineffective for
failing to investigate Petitioner’s claim that he did not consent to the search of Petitioner’s car by

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failing to interview witnesses and subpoena Officer James’ cell phone records) and Issue 1(b)
(counsel was ineffective for failing to introduce dispatch records).
Petitioner’s Objections lack the requisite specificity required by Federal Rule of Civil
Procedure 72(b). In his Objections, Petitioner makes unsupported assertions that the record
supports his claims and the bare contention that witness testimony, Officer James’ cell phone
records, and dispatch records would establish his counsel was ineffective. (ECF No. 70 at 2.)
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 Report by the magistrate judge.
Petitioner offers no facts to show that the magistrate judge’s assessment of the PCR court’s
findings were in error. In the Supplement to his Objections, Petitioner provides the dispatch
report he obtained through a Freedom of Information Act request. (ECF No. 72.) The PCR
court found that “it would be speculative to assume that the dispatch log would have made a
difference in the outcome [of the trial].” (ECF No. 65 at 31.) Petitioner fails to explain how the
log would have made a difference in the outcome of his trial, but merely attaches the documents
he received with no explanation. The PCR court further found that Petitioner’s counsel had
“conducted a proper investigation [and] was thoroughly competent in their representation.” (Id.
at 29.) Petitioner has shown no facts to demonstrate otherwise, nor to demonstrate how witness
testimony or cell phone records would establish ineffective assistance by his trial counsel. As
such, the court adopts the recommendation of the magistrate judge.

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Remaining Claims
Petitioner offers no objection to any other portions of the Report. 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.
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. 65). It is therefore ordered that Respondent’s Amended Motion for Summary
Judgment (ECF No. 56) is GRANTED and this Petition (ECF No. 1) is DISMISSED.
IT IS SO ORDERED.

United States District Judge
September 23, 2014
Columbia, South Carolina
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