Thomas v. Warden Steveson

Filing 25

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant and granting 16 Motion for Summary Judgment. Certificate of appealability is denied. Signed by Honorable R Bryan Harwell on 3/5/2013.(cwhi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
Bruce B. Thomas,

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Petitioner,
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vs.
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Warden Stevenson,
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Defendant.
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________________________________________________)

C/A No. 9:12-cv-01113-RBH

ORDER

The Plaintiff, pro se, instituted this action pursuant to 28 U.S.C. § 2254 on April 26, 2012. He
is incarcerated in the SCDC at Broad River Correctional Institution.
In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02 D.S.C., this matter was referred
to United States Magistrate Judge Bristow Marchant, for pretrial handling. The matter is before this
Court on the Report and Recommendation of Magistrate Judge Marchant, which was issued on January
4, 2013. After analyzing the issues presented in this case, the Magistrate Judge recommended that this
Court grant the respondent’s motion for summary judgment. The petitioner filed objections to the
Report on January 22, 2013.
In conducting its review of the Report and Recommendation, the Court applies the following
standard:
The Magistrate Judge makes only a recommendation to the court. The recommendation
has no presumptive weight. The responsibility to make a final determination remains
with the 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 Report 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).

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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). In the absence
of a timely filed, specific objection, the Magistrate Judge’s conclusions are reviewed
only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310,
315 (4th Cir. 2005).
“An 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 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. . . 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). Determinations of factual
issues by state courts are presumed correct and “the applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
“In all cases in which a state prisoner has defaulted his federal claims in state court pursuant
to an independent and adequate state procedural rule, federal habeas review of the claims is barred
unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged
violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice.” Coleman v. Thompson, 501 U.S.722 (1991).
Petitioner objects to the finding by the Magistrate Judge that he has not shown cause and
prejudice or actual innocence regarding habeas grounds One, Three, and Four, which were not raised
by counsel in the appeal from his post-conviction relief proceeding and were thus procedurally

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defaulted.1 The Court has reviewed the analysis of the Magistrate Judge on these points and finds it
to be accurate.
Petitioner also objects to the Magistrate’s analysis regarding Issue Two, which was the only
ground not procedurally defaulted. However, again, this Court agrees with the reasoning of the
Magistrate Judge.
The Court has reviewed the Petition, Report and Recommendation by the Magistrate Judge,
the applicable law, and the petitioner’s objections. On the basis of the authorities cited by the
Magistrate Judge and this Court’s review of the record, the Court overrules the objections and
adopts the Report of the Magistrate Judge. The respondents’ [16] motion for summary judgment is
granted.
A certificate of appealability will not issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). When the district court denies relief on the merits, a
prisoner satisfies this standard by demonstrating that reasonable jurists would find that the court’s
assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484
(2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When the district court denies
relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural
ruling is debatable, and that the petition states a debatable claim of the denial of a constitutional
right. Slack, 529 U.S. at 484-85. In the instant matter, the court concludes that Petitioner has failed

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Petitioner cites Martinez v. Ryan, 132 S.Ct. 1309 (2012) in his objections. In Martinez, the
Supreme Court recognized that “[i]nadequate assistance of counsel at initial-review collateral
proceedings may establish cause for a prisoner’s procedural default of ineffective assistance at trial.”
132 S.Ct. at 1315. However, the Court specifically held that the ability to show cause would not be
extended to cases like Petitioner’s where a party alleges cause for procedural default based on “attorney
errors in other kinds of proceedings, including appeals from initial review collateral proceedings.” Id.
at 1320.
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to make the requisite showing of “the denial of a constitutional right” and thus denies a certificate
of appealability.
IT IS SO ORDERED.
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
March 5, 2013
Florence, South Carolina

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