Allen v. McFadden

Filing 47

ORDER RULING ON REPORT AND RECOMMENDATION adopting 37 Report and Recommendation and GRANTS 24 Respondent's Motion for Summary Judgment. The habeas petition is DISMISSED WITH PREJUDICE. Signed by Honorable Richard M Gergel on 9/28/2015. (gpre, )

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

Michael Anthony Allen,
Petitioner,
vs.
Joseph L. McFadden, Warden,
Respondent.

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No. 8: 14-cv-03661-RMG

ORDER

This matter comes before the Court on the Report and Recommendation (R & R) of the
Magistrate Judge (Dkt. No. 37), recommending that Respondent's Motion for Summary
Judgment be granted. Petitioner has filed objections to the R & R. (Dkt. No. 45). For the
reasons stated below, the Court ADOPTS the R & R. Accordingly, Respondent's Motion for
Summary Judgment (Dkt. No. 24) is GRANTED.
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. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court may "accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate." 28
U.S.c. § 636(b)(1). This Court is charged with making a de novo determination of those
portions of the R & R to which objection is made. Diamond v. Colonial Life & Ace. Ins. Co.,
416 F.3d 310, 315 (4th Cir. 2005) (quoting 28 U.S.C. § 636(b)(1)); accord Fed. R. Civ. P.

neb).

The Court has carefully reviewed the pleadings, the parties' briefing, the R & R, and
Petitioner's objections, and concludes that the Magistrate Judge correctly applied the relevant
law to the operative facts in this matter. Petitioner has voluntarily withdrawn and abandoned
Grounds One and Three of his Petition. (Dkt. No. 35 at 12). In the remaining Ground, Petitioner

alleges that plea counsel was ineffective by failing to show him the second surveillance video.
(Dkt. No.1 at 7). Petitioner alleges that he first saw this second video on the day of trial and that
had counsel shown him this video, he would have accepted the State's prior, more favorable plea
offer. (Jd.; Dkt. No. 23-9 at 255).
"To show prejudice from ineffective assistance of counsel where a plea offer has lapsed
or been rejected because of counsel's deficient performance, defendants must demonstrate a
reasonable probability they would have accepted the earlier plea offer had they been afforded
effective assistance of counsel." Missouri v. Frye, 132 S. Ct. 1399,1409 (2012). The PCR
Court found that Petitioner had not shown prejudice. (Dkt. No. 23-9 at 302). The Court agrees
with the Magistrate Judge that this finding is not contrary to or an unreasonable application of
Supreme Court precedent or based on an unreasonable determination of the facts.l
Petitioner's own testimony under oath was only that he "may have" "been more likely to
accept" the earlier plea offer if he had seen the video. (Dkt. No. 23-9 at 261). Petitioner's trial
counsel testified that Petitioner "had made up his mind ... he was going to trial one way or the
other." (Id. at 282). As the PCR court found, there was "overwhelming" evidence of Petitioner's
guilt that he had reviewed before rejecting the earlier plea deal, including another surveillance
video of the gas station where the robbery occurred, the testimony of two eye witnesses that
identified Petitioner, and testimony from officers that arrested Petitioner for shoplifting and
discovered that he had the keys to the stolen car in his pocket. (Id. at 257-59). Despite this
evidence, Petitioner was determined to go to trial. (Jd.). Trial counsel testified that even without

The Court makes no finding with regard to the deficient performance prong of
Strickland.
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the second video, "[t]his wasn't a case ... that had any possibility ... of him winning." (ld. at
283). Counsel so advised Petitioner, but he still insisted on going to trial. (ld. at 257-59). With
this record, the Court does not find it unreasonable that the PCR Court found, no prejudice, i.e.,
that there was no reasonable probability that Petitioner would have accepted the earlier plea had
he seen the second video.
Therefore, the Court ADOPTS the R & R, (Dkt. No. 37), and GRANTS Respondent's
Motion for Summary Judgment, (Dkt. No. 24). The habeas petition is DISMISSED WITH

PREJUDICE.
Certificate of Appealability
The governing law 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 ofappealability ... shall indicate which specific issue or issues
satisfy the showing required by paragraph (2).
28 U. S. C. § 2253(c). A prisoner satisfies the standard by demonstrating that reasonable jurists would
find this Court's assessment ofhis constitutional claims debatable or wrong and that any dispositive
procedural ruling by the district court is likewise debatable. See Miller-EI 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. Therefore, a certificate of appealability is DENIED.

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AND IT IS SO ORDERED.

Richard Mark Gergel
United States District Judge

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September ')... ,2015
Charleston, South Carolina

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