Brown v. McFadden

Filing 36

ORDER adopting 29 Report and Recommendation. It is ORDERED that Respondent's 23 Motion for summary judgment is DENIED without prejudice. Respondent is given leave to refile the Motion within thirty (30) days of the entry of this Order. This matter is REFERRED back to the Magistrate Judge for further proceedings. Signed by Honorable R Bryan Harwell on 3/2/15. (kmca)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Javon Brown, # 272674, a/k/a Jovan )
T. Brown, a/k/a Jovon Brown,
)
)
Petitioner,
)
)
v.
)
)
Joseph McFadden, Warden,
)
)
Respondent.
)
)

Civil Action No.: 8:14-cv-1269-RBH

ORDER

Petitioner, a state prisoner proceeding pro se, initiated this suit by filing a Petition for a Writ
of Habeas Corpus pursuant to 28 U.S.C. § 2254 on April 11, 2014. See Petition, ECF No. 1.
Petitioner was convicted of possession with intent to distribute cocaine base and possession with
intent to distribute cocaine by a Horry County jury in January 2009. See ECF No. 24-1 at 3, 109.
Petitioner is currently incarcerated at Lieber Correctional Institution in Ridgeville, South Carolina.
On August 7, 2014, Respondent filed a motion for summary judgment and return and memorandum
to the petition. See ECF Nos. 23–24. Petitioner timely filed a response in opposition on August 27,
2014. See Pet.’s Resp., ECF No. 27. The matter is now before the court for review of the Report
and Recommendation (“R & R”) of United States Magistrate Judge Jacquelyn D. Austin.1 See R &
R, ECF No. 29. In her R & R, the Magistrate Judge recommends that Respondent’s motion be
denied with leave to refile. See id. at 17.
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to the district court.

The

recommendation has no presumptive weight. The responsibility to make a final determination
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This matter was referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local
Rule 73.02(B)(2)(c), D.S.C.

remains with the district court. Mathews v. Weber, 423 U.S. 261, 270–71 (1976). The Court is
charged with making a de novo determination of those portions of the R & R to which specific
objection is made, and the court may accept, reject, or modify, in whole or in part, the
recommendation of the Magistrate Judge, or recommit the matter with instructions. 28 U.S.C. §
636(b)(1).
The court is obligated to conduct a de novo review of every portion of the Magistrate
Judge’s report to which objections have been filed. Id. However, the court need not conduct a de
novo review when a party makes only “general and conclusory objections that do not direct the
court to a specific error in the magistrate’s proposed findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982) (“[D]e novo review [is] unnecessary in . . . situations when
a party makes general and conclusory objections that do not direct the court to a specific error in the
magistrate’s proposed findings and recommendation.”). The Court reviews only for clear error in
the absence of a specific objection. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d
310 (4th Cir.2005). Furthermore, in the absence of specific objections to the R & R, this Court is
not required to give any explanation for adopting the recommendation. See Diamond, 416 F.3d at
315; Camby v. Davis, 718 F.2d 198 (4th Cir. 1983).
DISCUSSION
In the R & R, the Magistrate Judge recommends the Court deny Respondent’s motion for
summary judgment with leave to refile. See ECF No. 29 at 17. Respondent’s motion was based
solely on the theory that Petitioner presented a mixed petition of exhausted and unexhausted claims.
Respondent conceded that Grounds 1 and 3 of the Petition were exhausted, but argued that Ground

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4 was not exhausted and that Petitioner still had a state court remedy for this ground.2 See ECF No.
29 at 14. Thus, Respondent argued that the case should be dismissed pursuant to Rose v. Lundy,
455 U.S. 509 (1982), because it is a mixed petition containing both exhausted and unexhausted
claims. Petitioner argued, however, and the Magistrate Judge agreed, that Ground 4 falls within the
limited exception which allows this Court to consider it to be exhausted. See ECF No. 29 at 15.
Ground 4 asserts that trial counsel was ineffective for failing to communicate enhancement factors,
and the Magistrate Judge found that Petitioner does not have an available state court remedy for
asserting this claim. See id. The Magistrate Judge noted that Respondent dedicated his entire
motion to the exhaustion/mixed petition issue, and did not file a reply to Petitioner’s response in
opposition. See id. at 16. Thus, the Magistrate Judge recommends denying Respondent’s motion,
but allowing Respondent to refile to address Grounds 1, 3, and 4. See id.
Petitioner objected to the R & R asserting only one objection. This objection simply takes
issue with the Magistrate Judge’s recommendation that Respondent be granted leave to refile to
address Grounds 1, 3, and 4. See ECF No. 31 at 1. Petitioner concedes that Respondent should be
allowed to refile with regard to Ground 4, but argues that Respondent should not be allowed to
address Grounds 1 and 3 because he “defaulted and thereby . . . waived all affirmative defenses that
were available to him.” See id. at 1–2. Petitioner argues that Respondent failed to “plead or
otherwise defend” Grounds 1 and 3 and it would be “extremely prejudicial” to allow Respondent to
refile to address these defaulted issues. See id. at 2. Respondent did not file any objections to the R
& R.

2

Respondent also argued that Ground 2 was not exhausted, which Petitioner conceded in his
response brief. See ECF No. 24 at 8; ECF No. 27 at 2. Accordingly, Petitioner withdrew Ground 2
in his response brief. See ECF No. 27 at 2.
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The Court finds that Petitioner’s objection is without merit. Respondent timely filed a return
and memorandum to Petitioner’s petition, asserting an argument that the petition should be
dismissed in its entirety. Accordingly, Respondent has not defaulted because he has not “failed to
plead or otherwise defend.” See Fed. R. Civ. P. 55(a). In his return, Respondent asserted that the
Petition should be dismissed without prejudice because it is a mixed petition containing claims that
are both exhausted and unexhausted. Respondent, therefore, did not address the substance of the
underlying claims in light of this potentially dispositive argument. The Magistrate Judge rejected
this theory, however, and the Court agrees.

That being said, it was certainly reasonable for

Respondent to argue his “mixed petition” theory, and to refrain from addressing Petitioner’s claims
any further at this juncture in light of the fact that the petition would have been dismissed had the
Court agreed with Respondent. This was an efficient and logical use of time and resources. In light
of the Court’s rejection of this theory, Respondent should be allowed to further address Petitioner’s
arguments. The Court finds that Petitioner would suffer no prejudice if Respondent is given leave
to refile, as Petitioner will be given the opportunity to fully and fairly respond to any arguments
Respondent raises in any subsequent motion. Accordingly, Petitioner’s objection is without merit.
CONCLUSION
After a thorough review of the record in this case, the Court agrees with the Magistrate
Judge that Respondent’s motion for summary judgment should be denied without prejudice and
with leave to refile. Accordingly, the Report and Recommendation of the Magistrate Judge is
adopted and incorporated by reference.
Therefore, it is ORDERED that Respondent’s motion for summary judgment is DENIED
without prejudice. Respondent is given leave to refile the Motion within thirty (30) days of the

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entry of this Order.

This matter is REFERRED back to the Magistrate Judge for further

proceedings.
IT IS SO ORDERED.
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
Florence, South Carolina
March 2, 2015

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