Smith v. Boulware

Filing 37

ORDER RULING ON REPORT AND RECOMMENDATION adopts 25 Report and Recommendation. Respondent's 14 Motion for Summary Judgment is granted and the habeas petition dismissed with prejudice. A certificate of appealability is denied. Signed by Honorable Richard M Gergel on 9/16/2016. (gpre, ) Modified on 9/16/2016 to add text (gpre, ).

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA

Marquita Smith,
Petitioner,
vs.
Warden Marian Boulware,
Respondent.

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No. 8: 15·cv·02165·RMG

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This matter comes before the Court on the Report and Recommendation (R & R) of the
Magistrate Judge (Dkt. No. 25), recommending that Respondent's Motion for Summary
Judgment be granted and the habeas petition be dismissed. For the reasons stated below, the
Court ADOPTS the R & R, GRANTS Respondent's Motion for Summary Judgment, and
DISMISSES the habeas petition.

I. Backeround 1
In August of 2007, Petitioner was indicted for accessory before the fact of a felony
(murder), accessory before the fact of a felony (burglary first degree), accessory before the fact
(kidnapping), and accessory before the fact (armed robbery). The charges arose out of events of
August 1-2,2007, where Petitioner's cousin, Dexter Perry, was kidnaped, robbed and killed.
Petitioner was charged as an accessory and her co-defendants were charged as principals. At
trial, the State argued that Petitioner "set [Perry] up" and "lured him to be robbed by [her codefendants]." (Dkt. No. 13-1 at 115).

1 Neither

party objects to the R&R's recitation of relevant procedural background on
pages 1-16. The Court adopts this portion of the R&R and only includes a brief summary here.

On August 27,2007, Petitioner and two co-defendants proceeded to a jury trial.
Petitioner's trial counsel made a motion for continuance and a motion for severance, and both
motions were denied. At trial, the State only proceeded on the charges of accessory before the
fact of a felony (murder) and accessory before the fact of a felony (armed robbery). (Dkt. No. 131 at 61). Petitioner was convicted of both charges.
Petitioner filed a direct appeal raising whether the lower court erred in denying
Petitioner's motions for a continuance and severance, and the South Carolina Court of Appeals
affirmed the conviction. Petitioner filed a PCR application raising seventeen ineffective
assistance of counsel claims. The PCR application was dismissed. Petitioner filed a belated
appeal under Austin v. State, 409 S.E.2d 395 (S.C. 1991), and the South Carolina Supreme Court
denied the petition for writ of certiorari from the denial Petitioner's first PCR application.
The instant habeas petition was timely filed on May 28,2015, raising ten grounds for
relief, nine of which allege that trial counselor appellate counsel was ineffective. The Magistrate
Judge recommended granting summary judgment on each of Petitioner's grounds for relief.
(Dkt. No. 25). Petitioner filed objections to portions of the R&R. (Dkt. No. 34).

II. Leeal Standard

A. Report & Recommendation
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)(l). This Court is charged with making a de novo determination of those portions

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of the R & R or specified proposed findings or recommendations to which objection is made.

Diamondv. 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).

As to portions of the R & R to which no specific objection has been made, this Court
"must' only satisfY itself that there is no clear error on the face of the record in order to accept the
recommendation.'" Id (quoting Fed. R. Civ. P 72 advisory committee note). Moreover, in the
absence of specific objections to the R & R, the Court need not give any explanation for adopting
the Magistrate Judge's analysis and recommendation. See Camby v. Davis, 718 F.2d 198, 199200 (4th Cir. 1983).

B. Federal Habeas Review
Petitioner's claims are governed by 28 U.S.C. § 2254(d), which provides that his petition
cannot be granted unless the claims "( 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 decision that 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] federal habeas court may not issue the writ simply because that court
concludes in its independent judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly. Rather, that application must also be
unreasonable." Williams v. Taylor, 529 U.S. 362,411 (2000). Importantly, "a determination ofa
factual issue made by a State court shall be presumed to be correct," and Petitioner has "the
burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U .S.C.

§ 2254(e)(1).
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C. Habeas Review of Ineffective Assistance of Counsel
Where allegations of ineffective assistance of counsel are made, the question is "whether
counsel's conduct so undermined the proper functioning of the adversarial process that the trial
cannot be relied on as having produced ajust result." Strickland v. Washington, 466 U.S. 668,
686 (1984). First, the Petitioner must show that counsel made errors so serious that counsel's
performance was below the objective standard of reasonableness guaranteed by the Sixth
Amendment. Id. at 687-88. Second, the Petitioner must show that "there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would have
been different." !d. at 694.
"The standards created by Strickland and § 2254(d) are both highly deferential ... and
when the two apply in tandem, review is doubly so." Harrington v. Richter, 562 U.S. 86,105,
(2011). In applying § 2254(d), "the question is not whether counsel's actions were reasonable.
The question is whether there is any reasonable argument that counsel satisfied Strickland's
deferential standard." Jd.
III. Discussion
A. Non-cognizable Ground - Ground Ten
In this ground, Petitioner alleges that South Carolina Supreme Court violated Petitioner's
equal protection and due process rights when it denied her the opportunity to file a Petition for
Writ of Certiorari to the South Carolina Court of Appeals. (Dkt. No. 1-1 at 28-29). The
Magistrate Judge found this ground was not a cognizable ground for habeas relief. (Dkt. No. 25
at 24-25). Petitioner does not object to this finding by the Magistrate Judge. (Dkt. No. 34 at 23).

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The Court agrees with the Magistrate Judge, adopts this portion of the R&R, and grants summary
judgment on Ground Ten.

B. Procedurally Barred Claim - Ground One (B)
In Ground One (B), Petitioner alleges that trial counsel was ineffective for failing to
adequately argue Petitioner's motion for continuance. (Okt. No. 1-1 at 3). The Magistrate Judge
found that this issue was procedurally barred. (Okt. No. 25 at 25). Petitioner has not objected to
this finding by the Magistrate Judge. (Okt. No. 34 at 5). The Court agrees, adopts this portion of
the R&R, and grants summary judgment on this ground.

C. Ground One (A)
In Ground One (A), Petitioner alleges that trial counsel was ineffective for failing to
adequately argue Petitioner's pre-trial motion for severance. (Okt. No. 1-1 at 3). In particular,
Petitioner argues that trial counsel should have argued that because Petitioner was being tried as
an accessory and her co-defendants were being tried as principals, the jury instructions would be
"unreasonably complex and confusing." (Okt. No. 34 at 4-5).
The PCR court found that trial counsel properly made the motion for severance, noting
that under South Carolina law, a severance "should be granted only where there is a serious risk
that a joint trial would compromise a specific trial right of a co-defendant or prevent the jury
from make a reliable judgment about a co-defendant's guilt." (Okt. No. 13-5 at 401). The Court
finds the PCR court's application of Strickland reasonable. Petitioner has not submitted any
evidence that the trial court would have granted Petitioner's motion had trial counsel made this
particular argument. Co-defendants that are charged as principals and accessories are regularly
tried together without the resulting jury instructions being unconstitutionally confusing.
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D. Ground Two
In Ground Two, Petitioner alleges that trial counsel was ineffective for failing to
adequately cross-examine state witness and co-defendant Kerry Hollins. (Dkt. No. 1-1 at 10). In
particular, Petitioner argues that trial counsel should have elicited testimony from Hollins that
Petitioner was unaware of a plan for Petitioner's co-defendants to bring weapons. (Id. at 10-11).
Hollins testified at the PCR proceeding that he would have so testified at trial if he had been
asked. (Dkt. No. 13-5 at 233, 236).
At the PCR hearing, trial counsel testified that he was concerned that "if Hollins was
getting up there testifYing against [Petitioner], ... we knew he was adverse to our position, was
going to do whatever it took to solidifY hopefully his and get a better [plea] deal. So my concern
then is I didn't know what he was going to say until he got up there and said, well, [Petitioner]
was in on it the whole time ... " (Dkt. No. 13-5 at 174; see also id. at 176 ("Our problem was we
just didn't know what his version was going to be.")). Petitioner argues trial counsel was
ineffective for not interviewing Hollins to ascertain what his testimony would be. Trial counsel
testified at trial that because Hollins was "testifYing for the State, I assumed he probably would
not talk to me" and that he typically advises clients to not speak to a co-defendant if they are
going to be a testifYing witness. (Dkt. No. 13-5 at 182).
The PCR court found these explanations credible and reasonable, and that trial counsel's
cross-examination met Strickland. (Dkt. No. 13-5 at 400,404-05). The Court finds the PCR
court's determination a reasonable application of Strickland.
In her objections, Petitioner argues that Hollins' pre-trial statement to law enforcement
was not "very divergent" from Petitioner's statement, and that, therefore, trial counsel's
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articulated fear is not credible. (Dkt. No. 34 at 6). As an initial matter, trial counsel did not, as
Petitioner asserts, admit that Hollins' statement was not "very divergent" from Petitioners. This
is the exchange between Petitioner's counsel at the PCR hearing, who is also Petitioner's counsel
in this habeas proceeding, and trial counsel:
Q. Okay. So really Kerry Hollins' testimony and his statements that you had in
discovery were not divergent with [Petitioner's] version, except for who called
who [sic] about the idea to begin with. Except for the lick thing. That's-I realize
the lick thing's a problem. I think it's a big problem. That's why I'm raising it.
But except for that his version and her version are really not very different
A. Sure. Sure.
Q. -

except for who called who?

(Dkt. No. 13-5 at 176). Trial counsel admitted that the statements were not very different except
for the "big problem" with the "lick thing" and the fact that Petitioner stated Hollins called her
and Hollins stated that Petitioner contacted him and suggested she had a "lick" for him. (See id.).
"For a federal habeas court to overturn a state court's credibility judgments, the state court's error
must be stark and clear." Cagle v. Branker, 520 F.3d 320,324 (4th Cir. 2008). The Court finds
no stark and clear error in the PCR court's determination that trial counsel was credible.
Therefore, for the reasons stated above, the Court adopts this portion of the R&R and
grants summary judgment on this ground.

E. Ground Three
In Ground Three, Petitioner alleges that trial counsel was ineffective for failing to object
to every time the State elicited testimony that "lick" constituted an armed robbery. The PCR
court found that trial counsel had no basis to object to this testimony. (Dkt. No. 13-5 at 381).
This Court agrees. Hollins testified that Petitioner told him she had "lick" for him, and the trial
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court would have allowed him to explain the term, even if Petitioner had objected. Petitioner
states that the PCR court's position is contrary to State v. Page, 378 S.c. 476 (S.C. Ct. App.
2008). In State v. Page, a witness testified that "making a lick" was slang for "coming up on
some extra money, doing something to come up with some extra money some way or somehow."

Id. at 479. In State v. Page, the court allowed this testimony, and nothing in the case suggests a
proper evidentiary objection to such testimony. The Court finds that the PCR court's application
of Strickland was reasonable, adopts this portion of the R&R, and grants summary judgment on
this ground.

F. Ground Four
In Ground Four, Petitioner alleges that trial counsel was ineffective for failing to
adequately argue her directed verdict motion. The PCR court found that "counsel zealously
argued on [Petitioner's] behalf, but the trial court found that there was enough evidence to submit
the case to ajury." (Dkt. No. 13-5 at 381).
Petitioner argues that the evidence at trial established she was present during "some
portion" of the acts committed by her co-defendants and that because lack of presence is an
element of accessory, she could not be convicted as an accessory. (Dkt. No. 34 at 8-9).
Specifically, Petitioner argues that her testimony and that of her friend established that she was
present at the friend's apartment, where the victim was "initially attacked and grabbed by the codefendants." (Dkt. No. 23 at 21). However, she admits that evidence did not establish where the
robbery took place, and, thus, it is only "possible" that she was actually present for the robbery
but also possible she was not. Petitioner never argues she was actually present during the
shooting and killing of the victim. (Id.). The State only pursued charges of, and Petitioner was
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only convicted of, accessory to armed robbery and accessory to murder. She was not convicted
of accessory to kidnapping or accessory to assault and battery. The fact that Petitioner testified
that she was present for the "initial[] attack" and kidnapping of the victim, does not prove she
was present for the robbery and murder.
The Court finds that the PCR court's application of Strickland reasonable, adopts this
portion of the R&R, and grants summary judgment on this ground.

G. Ground Five
In Ground Five, Petitioner alleges that trial counsel was ineffective for advising her not to
take the stand and for advising her that he would retain last argument by not presenting a defense.
(Dkt. No. 1-1 at 17). Petitioner's argument is based on the fact that Petitioner and her codefendants lost the right to last argument when a co-defendant put a single exhibit into evidence
during the prosecution'S case-in-chief. Trial counsel testified that he did not believe this action
would cost defendants last argument and was surprised by the trial court's ruling. (Dkt. No. 13-5
at 212). Trial counsel objected to the ruling. (Dkt. No. 13-4 at 38).
The PCR court found trial counsel was not ineffective. (Dkt. No. 13-5 at 405). It found
that trial counsel had reasons for advising Petitioner not to testify other than reserving last
argument, including how Petitioner would handle cross-examination from two strong prosecutors
and that if a co-defendant's pending murder charges came out then the jury might have believed
it foreseeable that someone would get killed in the robbery. (Id.) Petitioner asserts that trial
counsel's reasons are not credible and refuted by the record, but Petitioner does not cite to any
specific citations to the record. (Dkt. No. 34 at 9, 11). This Court must give deference to the

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peR court's findings, and Petitioner has not rebutted the peR court's findings with clear and
convincing evidence.
The peR court also found that it was ultimately Petitioner's decision not to testify, that
Petitioner never told trial counsel that she wanted to testify, and that "counsel's discussions with
[Petitioner], or lack thereof, regarding last argument did not affect the outcome oftrial." (Okt.
No. 13-5 at 405). Petitioner takes issue with the Magistrate Judge's statement that she conceded
she never told trial counsel that she wanted to testify. (Okt. No. 34 at 12). When asked whether
she ever told her trial counsel she wanted to testify, Petitioner responded "we never discussed it."
(Id.). While Petitioner may quibble with whether this testimony is a concession, it not clear and
convincing evidence rebutting the peR court's finding that Petitioner, in fact, never told trial
counsel she wanted to testify. While Petitioner testified at the PCR hearing that her reluctance to
testify was based on reserving last argument, the PCR court was not obligated to believe this
testimony. Furthermore, even if Petitioner's reluctance was based on reserving last argument,
there is no evidence that trial counsel had any knowledge of this.
The PCR court ultimately found that counsel's discussions with Petitioner, or lack
thereof, regarding last argument did not affect the outcome of the trial. Petitioner has not put
forward clear and convincing evidence to rebut this finding or show it was unreasonable.
Petitioner has not pointed to u.s. Supreme Court case with facts that were materially
indistinguishable from those faced by the PCR court but that arrived at a different result.
Therefore, the Court finds that the PCR court's application of Strickland was reasonable, adopts
this portion of the R&R, and grants summary judgment on this ground.

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H. Ground Six
In Ground Six, Petitioner argues trial counsel was ineffective for failing to request an
instruction on accessary to strong ann robbery and for failing to request a different instruction on
accomplice liability and/or object to the accomplice liability instruction given.
With regard to the first issue, the PCR court found that trial counsel was not ineffective
for failing to request an instruction on accessary to strong arm robbery. (Dkt. No. 13-5 at 402).
Counsel for co-defendants requested an instruction on strong arm robbery, and the trial court
declined to charge strong ann robbery because there was no evidence in the record that the
incident took place without weapons. (Id.). The PCR court found that it was unlikely that the
trial court would have charged accessory before the fact to strong arm robbery, given this ruling.
(ld.). As the Magistrate Judge pointed out, under South Carolina law, an accessory may not be
convicted if a principal is not convicted ofthe crime. (Dkt. No. 25 at 43 (citing cases)). There
cannot be an accessory to strong arm robbery if there was no strong ann robbery. Petitioner
argues that a charge of accessory to strong ann robbery should be given under these
circumstances, even if the principal crime of strong arm robbery is not charged. However,
Petitioner admits that she cannot find a case on point. (Dkt. No. 34 at 14). Whatever the Court
might find on this question in the first instance, the Court cannot find trial counsel was
ineffective under Strickland for failing to raise this apparently novel argument. Nor has
Petitioner presented clear and convincing evidence to rebut the PCR court's finding that the trial
court would likely have not allowed the instruction. The Court finds the PCR court's application
of Strickland reasonable.

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With regard to trial counsel's failure to object to the trial court's instructions on
accomplice liability and foreseeability or offer his own, the PCR court found that "[t]he
instruction given on accomplice liability and foreseeability were standard and appropriate," and
that trial counsel was not deficient for failing to object to the trial court's instructions or failing
present a different instruction. (Dkt. No. 13-5 at 402-03). The Petitioner's assertion to the
contrary does not show the PCR court's determination unreasonable.
Therefore, the Court finds that the PCR court's application of Strickland was reasonable,
adopts this portion of the R&R, and grants summary judgment on this ground.
I. Ground Seven

In Ground Seven, Petitioner alleges that trial counsel was ineffective for failing to make a
particular argument in closing and for failing to object to a statement in the prosecution's closing
argument. The PCR court found that trial counsel was not ineffective on these two grounds, and
the Magistrate Judge found the PCR court reasonably applied Strickland with regard to these two
allegations.
Petitioner does not object to the Magistrate Judge's finding with regard to trial counsel's
closing argument. (Dkt. No. 34 at 16). The Court agrees with the Magistrate Judge that the PCR
court's application of Strickland with regard to trial counsel's closing was reasonable and adopts
that portion of the R&R
Petitioner does object to the Magistrate Judge's finding with regard to the second
allegation. In closing argument, the prosecutor stated, "if the victim was killed in the course of
another felony, then his death is murder. End of story." (Dkt. No. 13-4 at 100). Petitioner
argues that trial counsel should have objected to this statement because it shifted the burden of
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proof for malice to the defendants. The PCR court found that Petitioner was not prejudiced by
trial counsel's failure to object because the trial court properly charged the jury on malice and
cured any potential defect: "I further instruct you that if one intentionally kills another during the
commission of a felony, the inference of malice may arise ... " (Dkt. No. 25 at 45) (emphasis
added by PCR court).
This Court agrees with the Magistrate Judge that Petitioner has not established that she
was prejudiced from trial counsel's failure to object and that the peR court's decision was
contrary to or an unreasonable application of Supreme Court precedent. Therefore, the Court
adopts this portion of the R&R and grants summary judgment on this ground.
J. Ground Eight

In Ground Eight, Petitioner argues that trial counsel was ineffective for failing to argue in
opening statements that murder was not a foreseeable consequence of any agreement between her
and her co-defendants. The PCR court found that trial counsel made a proper opening argument.
(Dkt. No. 13-5 at 404). It found that trial counsel did argue that "it was the jury's duty to decide
whether these crimes were committed and whether they were the natural consequences of
[Petitioner's] actions" and that trial counsel testified that "he did not want to overemphasize the
murder in his opening statement." , (Id.).
As Petitioner admits, trial counsel did make this argument with regard to armed robbery:
"part of this is y'all have got to decide whether there was an armed robbery and what she
contemplated. Because [a] certain crime occurred doesn't necessarily mean that she
contemplated it. And again, ... it's got to be a natural consequence." (Dkt. No. 13-1 at 131).

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And, as Petitioner admits,2 trial counsel also made the more general argument that "[a]side from
just proving that crimes occurred you kind of have a secondary-with accessory, a secondary
function is that you've got to determine what she knew or should have known." (Id.). Indeed,
trial counsel emphasized this point:
Ladies and gentlemen, I would ask that you would listen very carefully. I
would ask that you would weigh in. People are held responsible for what they do.
You don't hold them responsible for everything that happens after that. At some
point it's just too far beyond what you can forsee .
. . . . but the focus is: What did these people do? What did they know or
should have known? And I would ask that you would just listen to the evidence
or take what either side says, filter through your experience: "If that were me,
would I know or should have known?

(Id. at 131-32).
Petitioner argues that because trial counsel made the specific point with regard to armed
robbery but not murder, the jury could have interpreted trial counsel's opening statement as an
admission of the fact that murder should be foreseen as a probable consequence of armed
robbery. (Dkt. No. 34 at 19). This Court finds it highly unlikely that the jury construed trial
counsel's opening statement as such an admission.
The Court finds that the PCR court's application of Strickland was reasonable, adopts this
portion ofthe R&R, and grants summary judgment on this ground.

K. Ground Nine
In Ground Nine, Petitioner argues that appellate counsel was ineffective for not raising
two issues on direct appeal: 1) that the lower court erred by denying Petitioner's motion for
directed verdict and 2) that the lower court erred by charging the jury that the State must prove

2

(See Dkt. No. 34 at 19).
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beyond a reasonable doubt that Petitioner aided and abetted another person to "commit a crime,"
as opposed to "commit the specific crimes charged."
The PCR court found the following facts in relation to this claim:
This Court finds that appellate counsel and co-counsel are experienced
appellate attorneys. This Court finds that appellate counsel properly chose to brief
the issues that she and her co-counsel believed were the most meritorious.
Appellate counsel testified that she and her former employer Tommy Thomas,
Esquire, each read the trial transcript, looked for issues that were preserved for
appeal, and debated which issues were the best issues to raise. She testified that
she drafted an argument on the directed verdict issue, but she ultimately decided
that it was not their strongest issue. Appellate counsel also testified that she and
Mr. Thomas agreed with the trial court that guns were involved so strong arm
robbery should not have been charged. She testified that she and Mr. Thomas
discussed all the issues that were preserved and chose not to raise the issue about
lower court's charge to the jury that the State would only have to prove that the
Applicant aided and abetted another person "to commit a crime." This Court finds
that Applicant has failed to show that appellate counsel's representation was
deficient.
(Dkt. No. 13-5 at 408).
The Court finds the PCR court's application of Strickland reasonable. "Effective
assistance of appellate counsel does not require the presentation of all issues on appeal that may
have merit" United States v. Mason, 774 F.3d 824,828-29 (4th Cir. 2014) (internal quotation
marks omitted), cert. denied, 136 S. Ct. 514 (2015). "As a general matter, only when ignored
issues are clearly stronger than those presented," should a court find ineffective assistance for
failure to pursue claims on appeal. Id. at 829 (internal quotation marks omitted). Furthermore,
there is a presumption that "appellate counsel decided which issues were most likely to afford
relief on appeaL" Id. at 828 (internal quotation marks omitted).
Petitioner argues that the decision of the Court of Appeals and appellate counsel's
decision not to seek review by the South Carolina Supreme Court indicates that the issues
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actually presented on appeal were not strong. (Dkt. No. 34 at 23). Even if true, these facts do
not indicate that the issues pointed out by Petitioner were stronger than those actually raised by
appellate counsel. Likewise, the fact that appellate counsel stated there was a "valid argument"
on the jury charge issue in no way indicates that this argument was stronger than those arguments
actually raised.
Therefore, the Court finds that the PCR court's application of Strickland was reasonable,
adopts this portion of the R&R, and grants summary judgment on this ground.
IV. Conclusion

For the reasons stated above, the Court ADOPTS the R & R (Dkt. No. 25), GRANTS
Respondent's Motion for Summary Judgment (Dkt. No. 14), and DISMISSES the habeas
petition 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 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 the standard by demonstrating that reasonable jurists
would find this Court's assessment of his constitutional claims 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. Therefore, a certificate of appealability is DENIED.
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IT IS SO ORDERED.

Richard Mark Gerge
United States District Judge

September ,~ ,2014
Charleston, South Carolina

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