Opinion
C/A 5:23-5088-JD-KDW
07-30-2024
Odom Bryant, Petitioner, v. Warden of Tallahatchie County Correctional Facility, Respondent.
REPORT AND RECOMMENDATION
Kaymani D. West United States Magistrate Judge
Odom Bryant (“Petitioner”) is an inmate at the Tallahatchie County Correctional Facility who filed this pro se writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's Return and Motion for Summary Judgment. ECF Nos. 31, 32. On February 29, 2024, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the Summary Judgment Motion, dismissal procedures, and the possible consequences if he failed to respond adequately to Respondent's Motion. ECF No. 33. Petitioner failed to respond. The court issued an order on April 9, 2024, directing Petitioner to advise the court whether he wished to continue with his case and to file a response to the motion by May 8, 2024. ECF No. 36. On April 15 and 29, 2024, Petitioner filed responses in opposition to Respondent's Motion for Summary Judgment. ECF Nos. 38, 41.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 32, be granted, and this Petition be denied.
I. Factual and Procedural Background
Petitioner was indicted by the Horry County grand jury in the October 2013 term of court for two counts of murder.App. 708-709, 711-12. Petitioner proceeded to a jury trial on January 12-15, 2015, before the Honorable Benjamin Culbertson, Circuit Court Judge. App. 1 et. seq. The State was represented by Bradley Richardson, Esq., and Monica Wooten, Esq., and Dean Mureddu, Esq., and Casey Brown, Esq. represented Petitioner. App. 1. The jury found Petitioner guilty on the murder charges. App. 593-94. Judge Culbertson sentenced Petitioner to life imprisonment. App. 601.
Petitioner was also indicted for first degree, burglary, and this charge was nolle prosed on February 9, 2015. App. 716-18.
Citations to “App.” refer to the Appendix for Petitioner's trial plea transcript and Post-Conviction Relief (“PCR”) proceedings and the page numbers on the top of the page. That appendix is available at ECF Nos. 31-1 to 31-2 in this habeas matter.
Petitioner appealed his convictions to the Court of Appeals. On appeal, Petitioner was represented by Reid T. Sherard, Esq. App. 686. Petitioner raised the following issues on appeal:
The information for the direct appeal was taken from the PCR Court order as the court was not provided a copy of the direct appeal documents. See App. 686.
1. Did the trial court err by allowing the State's main witness to reference the status of the case against a conspiracy co-defendant when the evidence was irrelevant and highly prejudicial and when counsel stipulated the evidence would not be admitted, the trial court ruled the evidence would not be admitted, and the defense reasonably relied upon the stipulation and ruling?
2. Did the trial court err by failing to follow the proper Batson procedure and shifting the burden to the defense, and thereafter improperly granting the State's Batson motion, resulting in a member of the venire struck by the defense being on the jury?App. 686.
The Court of Appeals issued a decision on July 26, 2017, affirming Petitioner's conviction. Id. The Remittitur was issued on August 11, 2017. Id.
Petitioner filed an application for post-conviction relief (“PCR”) on May 23, 2018, in which he alleged he was being held unlawfully due to violation of due process, ineffective assistance of counsel, and violation of constitutional rights. App. 608. The State filed a return and partial motion to dismiss on August 22, 2018. App. 613-23. Petitioner filed an Amended PCR application on October 25, 2021, in which he alleged additional ineffective assistance of trial counsel claims. App. 626-31.
A PCR evidentiary hearing held before the Honorable Robert E. Hood, Circuit Court Judge, on October 27, 2021. App. 633-83. Petitioner was present and represented by Attorney Matthew S. Swilley, and Attorneys Chelsey Marto and William Ray appeared on behalf of the State. See Id. Petitioner and his trial counsel Dean Mureddu testified at the hearing. Id. On March 9, 2022, Judge Hood filed an order dismissing Petitioner's PCR application with prejudice, making the following findings of fact and conclusions of law:
Findings of Fact and Conclusions of Law
This Court has had the opportunity to review the record in its entirety and has heard the testimony and arguments presented at the PCR hearing. Before this Court are the Horry County Clerk of Court Records, Applicant's South Carolina Department of Corrections Records, the trial transcript, direct appeal records, and this PCR action's records. This Court has further had the opportunity to observe each witness who testified at the hearing, and to closely pass upon their credibility. This Court has weighed the testimony accordingly. Set forth below are the relevant findings of fact and conclusion of law as required by South Carolina Code Annotated Section 17- 27-80 (2003).
Ineffective Assistance of Counsel
In a PCR action, the applicant bears the burden of proving allegations contained in the application. Butler v. State, 286 S.C. 441, 334 S.E.2d 813 (1985). When an applicant asserts ineffective assistance of counsel as a ground for relief the applicant must show “counsel's conduct so undermined the proper functioning of the adversarial process that [it] cannot be relied upon as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686 (1984); Butler, 286 S.C. at 442 334 S.E.2d at 814. Ineffective assistance of counsel is governed by the Sixth Amendment as explained by the United States Supreme Court in Strickland v. Washington.
Pursuant to the first prong of the Strickland analysis, the applicant must prove defense counsel's performance was deficient. Id. at 686; Cherry v. Stare, 300
S.C. 115, 117, 386 S.E.2d 624, 625 (1989). To show deficiency, the applicant must prove by a preponderance of the evidence that counsel's actions fell outside of the zone of “reasonableness under prevailing professional norms.” Strickland, 466 U.S. at 688. See also Rule 71.1(c), SCRCP (“The applicant has the burden of establishing his entitlement to relief by a preponderance of the evidence.”). Reasonableness is determined by the “variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how to best represent a criminal defendant,” and the scope of the reasonableness inquiry is limited to facts counsel had available at the time of representation. Id. at 689. “Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (citing Strickland, 466 U.S. at 690). Judicial scrutiny of counsel's performance remains highly deferential towards defense counsel with a strong presumption that counsel acted competently, because competent representation may be executed in virtually “countless” ways. Strickland, 466 U.S. at 688-89.
Second, counsel's deficient performance must have prejudiced the applicant so that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Cherry, 300 S.C. at 117-18. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. The court makes this determination based upon the totality of the evidence. Id. at 695. Realistically, this matters “only in the rarest case” because [t]he likelihood of a different result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 111-12 (2011) (quoting Strickland, 466 U.S. at 697).
The standards do not establish mechanical rules; the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose results being challenged. Strickland, 466 U.S. at 696. A court need not first determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies; if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice that course should be followed. Id. at 696-97.
Batson Motion
Applicant claims Counsel was ineffective for failing to articulate raceneutral reasons for using peremptory strikes pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986). “Under Batson ... and later decisions applying Batson, parties are constitutionally prohibited from exercising peremptory challenges to exclude jurors based on race, ethnicity, or sex.” Rivera v. Illinois, 556 U.S. 148, 148, 129 S.Ct. 1446, 1447 (2009). See also Snyder v. Louisiana, 552 U.S. 472, 128 S.Ct. 1203 (2008); United States v. Lane, 866 F.2d 103, 105 (4th Cir. 1989).
At trial, the State raised a Batson challenge because Counsel struck all white
people, all but one were male, and acknowledged that only one white male and a few white females were not struck. Counsel gave race neutral reasons for striking the individuals he struck, including that one person held a government-affiliated job, another was an active security guard, and another was affiliated with the National Guard. (Tr. 33-35). The State responded with counter examples, to which Counsel admitted that he often strikes individuals based on their demeanor and his instinct about potential jurors. (Tr. 36-38). The Court granted the motion. (Tr. 38).
At the PCR hearing, Counsel testified that the striking of white men was inadvertent, but the judge was not satisfied with the explanation for the striking. He stated that the judge was seemingly looking for a detailed reason, but he mostly picks jurors by instinct, based upon their demeanor or background, as opposed to a detailed scientific process. Counsel stated he wanted younger people on the jury because they tend to be more open minded. Counsel stated that the Court found he was striking white men. Counsel stated that he disagreed with the Court's ruling, but could not convince the Court of his position. Counsel stated that if there was something procedurally improper about how the Judge conducted the Batson motion he would have objected. Counsel stated that though he did not get the jury he originally wanted, he was unsure whether it would have made a difference in the outcome of the trial.
This Court finds Applicant has not established deficiency or prejudice. Concerning deficiency, Counsel provided race neutral reasons for why he struck certain jurors, all of which revolved around their backgrounds and demeanor towards him in the courtroom. The Judge found the explanations provided insufficient, but this finding is rooted in disagreement concerning what is an appropriate reason, not over whether Counsel provided a race neutral reason at all. Counsel is not required to obtain a favorable decision from a judge to avoid a finding of deficiency, but is required to act reasonably. Counsel did so in providing race neutral reasons for striking the individuals he did, even if the reasons were not accepted by the Court. Thus, this Court finds that Counsel acted reasonable and was not deficient.
Additionally, no prejudice is found. Applicant has not shown that, but for Counsel being unsuccessful in executing his preferred peremptory strikes, the outcome at trial would have been different. Counsel acknowledged at the PCR hearing that he did not know whether it would have made a difference at trial had he been successful in his peremptory strikes. Further, this Court finds there was sufficient enough evidence for Applicant to be convicted at trial, regardless of who the jury members were, which consisted of texts between Applicant and the co-defendant about the door being open, the convenience store footage, that he was implicated by co-defendants, and that Applicant placed himself on the scene at the time of the murder in a police statement. Thus, even if Counsel was deficient, no prejudice is found flowing therefrom. Accordingly, relief is denied on this ground.
Eliciting Inadmissible Statements
Applicant claims Counsel was ineffective for eliciting inadmissible statements. Specifically, Applicant takes issue with this section of the cross-examination of Sargent Brandon Strickland:
Q: So when he reinitiated the interview, according to him, basically, he told you all, okay, I was lying, now I'm going to tell you what really happened, can you sum it up, something like that? Do you want me to say it a different way?
A: I'll say exactly what he told me. He said as we're walking out, he said, James cut a deal, didn't he; that is what he said to me.(Tr. 466).
Once this statement came in at trial, Counsel requested the jury be excused from the courtroom so he could take up a matter of law. (Tr. 466). Counsel then moved for a mistrial. (Tr. 467). The Court denied the motion, stating Counsel opened the door and it was not hearsay. (Tr. 468-69). The Court found the statement was sufficiently responsive to the question posed, even if it was not a “yes” or “no” answer. (Tr. 469-70). Counsel requested clarification on how much latitude the Court would grant the State on re-direct examination on that issue, to which the Court stated he would deal with the issue was it arose. (Tr. 469-70). The State stated the only question on the issue they would pose on re-direct was whether the Sargent informed Applicant of any information James provided to law enforcement, stating it thought the answer was a no. (Tr. 470). The Court indicated that was fine and Counsel did not object. (Tr. 470).
At the PCR hearing, Counsel stated this was a critical part of the case and that he was intentionally being careful about the questions posed. Counsel stated he asked a pointed question on cross-examination about Applicant's decision to reinitiate the interview asking if Applicant stated he was lying and wanted to talk again. Counsel stated that the Sargent blurted out that Applicant asked if James cut a deal, to which Counsel moved for a mistrial once the jury left the room. Counsel testified that the prosecutor's position was that Counsel opened the door, to which the Judge agreed. Counsel stated he disagrees with that ruling. Counsel stated that he probably did not renew his motion for mistrial throughout the course of the trial. He stated he thinks he likely did or would have if he remembered, but did not make a big deal when renewing motions because once the judge rules, the matter is decided. Counsel stated he did not ask for a curative instruction, and would not do so now because that would further draw attention to the statement. On cross-examination, Counsel stated he recalled being asked about the scope of redirect examination of Strickland after his motion for a mistrial was denied, but the Judge decided see how everything played out.
This Court finds Counsel was not deficient. Counsel asked a question he believed was closed and could not open the door to testimony provided if appropriately responded to. Once the witness blurted out the incriminating statement he acted reasonably in moving for a mistrial and, thereafter, asking how broad the scope on re-direct on this issue would be. He provided an objectively reasonable trial strategy for not requesting a curative instruction namely, that requesting one would draw more attention to the statement. At the PCR hearing, he stated he did not think the question was improper in retrospect, but stated that the witness's answer was not responsive to the question posed and the Court reached a ruling on the issue he still disagrees with; namely, that he elicited the answer through his question. This Court finds Counsel was not deficient because he asked a question he reasonably thought was closed and took reasonable measures to remedy the situation when the statement was made.
Additionally, even if Counsel was deficient, Applicant was not prejudiced as a result. Co-defendant Locklear identified Applicant by his street name and informed law enforcement he frequented a convenience store, where he was caught on tape with the gun used in commission of the crime. (Tr. 377, 430-34). Locklear's cousin testified at Applicant's trial that the gun in the footage, which had a unique pearl handle, was in Locklear's possession. (Tr. 342-45). Locklear's cousin also testified that Locklear indicated that she came into possession of her husband's life insurance policy and told her “if that son-of-a-bitch died today [she'd] be a rich bitch tomorrow.” (Tr. 342).
Additionally, Applicant provided a recorded voluntary statement to police, where he ultimately stated that Evans enlisted Applicant's help “to scare a dude up.” (Tr. 474-77). Locklear signaled Applicant to enter the back door through texts, which were entered into evidence. (Tr. 191-93, 477-78). Despite bringing a baseball bat along, he did not expect anyone to be harmed and maintained that he did not know anyone had a gun when he first entered the home. (Tr. 479-80, 484). Applicant stated that Locklear shot the victims while he was in a back bedroom looking through the residence. (Tr. 482). Applicant left quickly after the gunshots, taking nothing but the baseball bat and the Kia they arrived in, which he admitted to burning the Kia. (Tr. 485).
Thus, this Court finds that given the other incriminating evidence against Applicant even if Counsel was deficient for eliciting the statement, Applicant was not prejudiced as a result. There was sufficient enough evidence for the jury to find Applicant guilty even if it was not elicited. Accordingly, because Applicant has not established deficiency nor prejudice, relief is denied on this ground.
Waiver of Preliminary Hearing
Applicant's claim that Counsel was ineffective for waiving the preliminary hearing is without merit. In South Carolina, there is no constitutionally protected right to a preliminary hearing. State v. Keenan,
278 S.C. 361,296 S.E.2d 676 (1982). Additionally, a preliminary hearing is not held if the defendant is indicted by a grand jury or waives presentment before the preliminary hearing occurs. Rule 2(b) SCRCrimP.
Here, Applicant was indicted by the grand jury in October 2013. No showing of Applicant requesting a preliminary hearing before being indicted was made in the PCR hearing or before trial. Accordingly, Applicant has seemingly waived his right to a preliminary hearing and cannot request one now that he has been convicted. Thus, relief is denied on this ground.
Shifting Burden of Proof
Applicant's claim that the State shifted its burden of proof in showing Applicant was guilty of murder as a principal by raising the claim under the hand of one hand of all theory. “‘Under the ‘hand of one is the hand of all' theory [of accomplice liability], one who joins with another to accomplice an illegal purpose is liable criminally for everything done by his confederate incidental to the execution of the common design and purpose.” State v. Thompson, 374 S.C. 257, 26l-62, 647 S.E.2d 702, 704-05 (Ct. App. 2007) (quoting State v. Condrey, 394 S.C. 184, 194, 562 S.E.2d 320, 324 (Ct. App. 2002)). ‘“A defendant may be convicted on a theory of accomplice liability pursuant to an indictment charging him on1y with the principal offense.'” Id. at 262, 647 S.E.2d at 705 (quoting Condrey, 394 S.C. at 194, 562 S.E.2d at 324). Though “[m]ere presence and prior knowledge that a crime was going to be committed, without more is insufficient to constitute guilt”, “‘presence at the scene of a crime by pre-arrangement to aid, encourage, or abet in the perpetration of the crime constitutes guilt as a [principal].'” Id. (quoting State v. Hill, 268 S.C. 390, 395-96, 234 S.E.2d 219, 221 (1977)). “In order to establish the parties agreed to achieve an illegal purpose thereby establishing presence by pre-arrangement, the State need not prove a formal expressed agreement, but rather can prove the same by circumstantial evidence and the conduct of the parties.” State v. Gibson, 390 S.C. 347, 354, 70) S.E.2d 766, 770 (Ct. App. 2010). See also Condrey, 394 S.C. at 193, 562 S.E.2d at 324 (stating that “[a] formally expressed agreement is not necessary to establish the conspiracy” that brings the accomplice to the crime scene). In similar cases, guilty convictions were sustained if there was sufficient evidence indicating a common scheme or plan, regardless of whether or not the defendant fired the fatal shot. See Gibson, 390 S.C. at 355, 701 S.E.2d at 770 (finding sufficient evidence existed indicating the defendant participated in a common scheme or plan with his co-defendant when he agreed to act in concert with his co-defendant who fired the fatal shot when defendant informed co-defendant of the situation, that the call to pick him up from the bar was not solely for the purpose of removing defendant from the scene, and that defendant was aware of the fireman available for him to retrieve from his co-defendant's car); State v. Dickman, 341 S.C. 293,534 S.E.2d 268 (2000) (finding that enough evidence existed to sustain a murder conviction when the appellant acted with his co-defendant pursuant to a common scheme or plan when appellate told a friend the date the murder would take place, arranged the incident with the co-defendant,
retrieved a gun set aside by the co-defendant and handed the gun to co-defendant, who promptly fired the fatal shot).
Regardless of whether or not Applicant was the shooter, he could still be found guilty as a principal under the hand of one hand of all theory. This is not a burden shifting mechanism, but a way of proving an individual is guilty of the crime charged, regardless of whether or not it is established that he was, in fact the shooter. Thus, the allegation that the burden of proof shifted from the State to Applicant is meritless. Accordingly, Counsel is not ineffective for failing to object to this and no prejudice is found flowing therefrom. Hence, relief is denied on this ground.
Failure to Show Discovery
Applicant's claim that Counsel was ineffective for failing to show Applicant all the discovery in the case was without merit. Counsel credibly testified that the State had a lot of evidence in this case and that all evidence produced in the case was shared with Applicant. Additionally, though Applicant stated that Counsel did not share all discovery with him, he did not state exactly what was not shown to him or how it would have impacted the trial proceedings. Accordingly, this Court finds that Counsel was not deficient on this ground and no prejudiced flowed therefrom. Thus, relief is denied on this ground
Conclusion
Based on all the foregoing, this Court finds and concludes that Applicant has not established any constitutional violations or deprivations that would require this Court to grant his application. Therefore, this PCR application must be denied and dismissed with prejudice.App. 685-706.
Attorney Matthew S. Swilley filed a notice of appeal of the PCR court's order on March 16, 2022. ECF No. 31-3. On appeal Petitioner was represented by Appellate Defender Jessica M. Saxon, South Carolina Commission on Indigent Defense, Division of Appellate Defense. ECF No. 31-4. Attorney Saxon filed a petition for writ of certiorari in the South Carolina Supreme Court on September 24, 2018, presenting the following issue:
Whether the PCR court erred in finding that trial counsel was not ineffective where counsel failed to argue that the trial court improperly shifted the burden of proof to defense counsel in deciding the State's motion pursuant to Batson v. Kentucky ?Id. at 3. The State filed a return on December 22, 2022. ECF No. 31-5. The South Carolina Supreme Court filed an order on September 12, 2023, denying the petition for a writ of certiorari. ECF No. 31-6. The remittitur was issued on October 2, 2023. ECF No. 31-7. This Petition followed on October 11, 2023. ECF No. 1.
476 U.S. 79 (1986)
II. Discussion
A. Federal Habeas Issues
Petitioner states the following grounds in his Petition, quoted verbatim:
Ground One: Petitioner suffer prejudiced by ineffective adviced of counsel by erroneously adviced him to reject plea bargain offer.
Supporting Facts: During the trial Court proceeding petitioner counsel erroneously advised him not to accept the plea bargain offer by stating that he would of get a life sentence whether he plead guilty or not See trial court transcript pg 641 attach as verification. Relying on counsel advised petitioner went on to trial and was convicted and sentence to two life sentences. There is reasonable probability had petitioner would of accept the plea bargain offer the outcome of his sentence would been less severe.
Ground Two: Petitioner constitutional right to the 4 amendment U.S. constitution warrant procedure was violated in applying for warrant
Supporting Facts: The petitioner was arrested on a warrant that was issue by a magistrate judge on or about August 19, 2012. The affidavit prepared by the affiant was not base upon personal knowledged the affidavit contain inaccurate information that was not supported by facts. The affiant stated in the affidavit that defendant forcing entry into the home with specific intent to commit a crime. On page 218 of the Court transcript Line (4 to 8) officer Johnathan Martin stated there was no signs of force entry contradicting affiant affidavit.
Ground Three: Counsel was ineffective for failing to request a competency hearing to determined petitioner mental capacity to stand trial
Supporting Facts: The petitioner suffer with a mental illness from his childhood which he was unable to understand the nature of the proceeding
against him to properly defend himself. During the cross examination of petitioner on page 521 to 524 petitioner was responding yes to the question ask by the court though he could not comprehend the proceeding against him. Through out court records and his interview with law enforcement officer there was irrational mental behavior sign of the nature of mental illness during the trial court proceeding which the court went unnoticed and ignored these symptoms of petitioner mental behavior.
Ground Four: Petitioner was prejudiced by judicial bias by not receiving a fair impartial jury panel
Supporting Facts: The petitioner was deprived of a fair impartial jury panel due to racial judicial bias within the Horry County judicial system with counsel stating a racial remark during trial court proceed stating that 92 percent white population in Horry County and that if petitioner was in Georgetown the ethnic variation would be majority of of African-American. See page 37 to page 38 of court transcript attach as verification.
Ground Five: The Trial Court Erred in Denying motion to Suppress Evidence that was based on hearsay evidence. Because the Affiant's Affidavit was not Based on his personal knowledge.
Supporting Facts: The court denied petitioner motion to suppress evidence of clear hearsay statement that was inadmissible. Office Neil Frebewitz audio tape of the interrogation between petitioner and himself proved that what was allowed to be heard before a jury was all another officer testifying to what Detective Neil Frebowitz (Who was no longer with law enforcement and could not be reached to testify) meant by his line of questioning. See page 94 thru 96 of transcript. Attached for verification.
Ground Six: Trial Counsel was Ineffective for Opening the Door [for] to a issue that had previously been stipulated by all parties outside of the jury. Trail counsel then ask for a mistrial alledging that petitioner was prejudiced by the testimony.
Supporting Facts: Trial counsel and assistant solicitor consented on record to keep out evidence and the status of the co-defendants case. The judge ruled that the only way it would be allowed if trial counsel opened the door. Trail counsel opened the door then asked for a mistrial that was denied, because the judge found and ruled that the error was trail counsel fault. Hearby making it undisputable that the trail counsel was deemed ineffective by the ruling of trail judge. See page of trial transcript not attached.
Ground Seven: Trail counsel was ineffective for failing to properly argue the approapreant procedure regarding a Batson challenge during the jury selection. And he also failed to articulate a proper race-neutral reason he struck certain jurors.
Supporting Facts: After the selection of a jury the state made a motion pursuant to Batson v. Kentucky and the court granted the motion after trial counsel did not articulate a reason as to why he struck certain jurors and did not assert to the state had to initially made a prima facie showing as to which of the Defendant's strike where based on bias.
Ground Eight: Petitioner right to a preliminary Hearing was violated in which the court waived petitioner right to the preliminary hearing without petitioner or his lawyer being present.
Supporting Facts: Petitioner was deprived of his right to a preliminary hearing which was waived without petitioner of his attorney being present. And Note on 8/30/2013 the day of the preliminary examination no indictments was brought before the grand jury, which is required by law see 108 preliminary hearing of the South Carolina Rules of Criminal Procedure. Also Attached is the preliminary examination record for verification. See Exhibit F.
Ground Nine: The petitioner suffered a violation of rights under the Fifth Amendment U.S. Constitution that prohibited double jeopardy.
Supporting Facts: On Aug. 21, 2012 the judge concented to arrest warrants because the fraudulent information which was presented. These warrants charged the defendant with 2 counts of murder and one count of first degree burglary. During the pretrial motions the socilitor agreed to dismiss the burglary because of the lack of evidence supporting the alleged offense. Because the text messages and police report showed that there was no sign of forced entry so the state granted a Nolle prosse on the burglary because there was no unlawful entry. Affiant swore that in the commission of the burglary the murders occured but the burglary was a falsified charge used to secure the murder charge causing a double jeopardy issue see exhibit (9) pages 109-112 of trail transcript. Attached for verification.
Ground Ten: The trial court errored by declining to question and ask each juror the kind of media exposure and the degree of media exposure in which each prospective juror may have been tainted by prior to the jury panel selection.
Supporting Facts: During the jury selection trail court did not ask each juror what the kind and or degree of media exposure to petitioner's case relating to the media exposure (newspaper; news; word of mouth; ect.) in Horry County. The Fact is majority if not all of the jurors had been exposed to the case prior to the jury selection. There is nothing on the transcript record from the Petitioner's trail that verify that the courts questioned all prospective jurors on their media exposure to petitioners' case prior to being selected on the jury panel. Petitioner was soughted from Aug. 19, 2012 till
Sep. 18, 2012. He was soughted by U.S. Marshals and every law enforcement agencies that was advable in Columbus County and Horry County to capture him. Including the News the news papers an also BOLO's, ect... So it's reasonable probability that majority if not all was tainted by this exposure
ECF No. 1 at 5-18. (Errors in Original).
B. Standard for Summary Judgment
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. At the summary judgment stage, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e).
C. Habeas Corpus Standard of Review
1. Generally
Because Petitioner filed his petition after the effective date of the AEDPA, review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997); Breard v. Pruett, 134 F.3d 615 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication: (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 at the State court proceeding. 28 U.S.C. § 2254(d)(1)(2); see Williams v. Taylor, 529 U.S. 362, 398 (2000). “[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.” Id. at 410. Moreover, state court factual determinations are presumed to be correct and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
a. Deference to State Court Decisions
Courts afford deference to state courts' resolutions of the habeas claims of state prisoners. See Bell v. Cone, 543 U.S. 447, 455 (2005). The Supreme Court has provided further guidance regarding the deference due to state-court decisions. Harrington v. Richter, 562 U.S. 86 (2011); Cullen v. Pinholster, 131 S.Ct. 1388 (2011). To obtain habeas relief from a federal court, “a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. “[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 102. The Court further stated: “If this standard is difficult to meet, that is because it was meant to be.” Id.; see Richardson v. Branker, 668 F.3d 128, 137-44 (4th Cir. 2012) (quoting Harrington extensively and reversing district court's grant of writ based on his ineffective assistance of counsel claims).
In interpreting § 2254(d)(1) and discussing the federal courts' role in reviewing legal determinations made by state courts, the United States Supreme Court held as follows:
[A] federal court may grant a writ of habeas corpus if the relevant state-court decision was either (1) “contrary to . . . [clearly] established Federal law as determined by the Supreme Court of the United States,” or (2) “involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States.Williams v. Taylor, 529 U.S. 362, 404-405 (2000) (quoting from § 2254(d)(1)). “Clearly established Federal law in § 2254(d)(1) refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.” Carey v. Musladin, 549 U.S. 70, 74 (2006) (quoting Williams, 529 U.S. at 412). In considering whether a state-court decision is “contrary to” clearly established federal law, the federal court may not grant relief unless the state court arrived at a conclusion opposite to that reached by the Supreme Court on a legal question, the state court decided the case differently than the Court has on facts that are materially indistinguishable, or if the state court “identifie[d] the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applie[d] that principle to the facts of the prisoner's case.” Williams, 529 U.S. at 405-13. The “unreasonable application” portion of § 2254(d)(1) “requires the state court decision to be more than incorrect or erroneous[,]” it “must be objectively unreasonable,” which is a higher threshold. Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (internal citation omitted).
Section 2254(e)(1) requires the federal court give a presumption of correctness to state-court factual determinations and provides that a petitioner can only rebut such a presumption by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Accordingly, a habeas petitioner is entitled to relief under § 2254(d)(2), only if he can prove, by clear and convincing evidence, that the state court unreasonably determined the facts in light of the evidence presented in state court.
b. Ineffective Assistance of Counsel
The Sixth Amendment provides a criminal defendant the right to effective assistance of counsel in a criminal trial and first appeal of right. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court announced a two-part test for adjudicating ineffective assistance of counsel claims. First, a petitioner must show that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. Id. at 687. Second, the petitioner must show that this deficiency prejudiced the defense. Id. at 694. The United States Supreme Court's 2011 decisions cited previously elaborate on the interplay between Strickland and § 2254, noting the standards are “both highly deferential,” and “when the two apply in tandem, review is doubly so.” Harrington, 562 U.S. at 105 (internal quotation marks omitted); Pinholster, 131 S.Ct. at 1403. When a petitioner raises in a § 2254 habeas petition an ineffective-assistance-of-counsel claim that was denied on the merits by a state court, “[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable[,]” not “whether defense counsel's performance fell below Strickland's standard.” Harrington, 562 U.S. at 101. “For purposes of § 2254(d)(1), ‘an unreasonable application of federal law is different from an incorrect application of federal law.'” Id. (citing Williams, 529 U.S. at 410) (emphasis in original). “A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.” Id.
2. Procedural Bar
Federal law establishes this court's jurisdiction over habeas corpus petitions. 28 U.S.C. § 2254. This statute permits relief when a person “is in custody in violation of the Constitution or laws or treaties of the United States[,]” and requires that a petitioner present his claim to the state's highest court with authority to decide the issue before the federal court will consider the claim. 28 U.S.C. § 2254(a)-(b). The separate but related theories of exhaustion and procedural bypass operate in a similar manner to require that a habeas petitioner first submit his claims for relief to the state courts. A habeas corpus petition filed in this court before the petitioner has appropriately exhausted available state-court remedies or has otherwise bypassed seeking relief in the state courts will be dismissed absent unusual circumstances detailed below.
a. Exhaustion
Section 2254 contains the requirement of exhausting state-court remedies and provides as follows:
(b) (1) 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 unless it appears that-
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B) (i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
The statute requires that, before seeking habeas corpus relief, the petitioner first must exhaust his state court remedies. 28 U.S.C. § 2254(b)(1)(A). “To satisfy the exhaustion requirement, a habeas petitioner must present his claims to the state's highest court.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997). Thus, a federal court may consider only those issues that have been properly presented to the highest state courts with jurisdiction to decide them.
In South Carolina, a person in custody has two primary means of attacking the validity of his conviction: (1) through a direct appeal; or (2) by filing an application for PCR. State law requires that all grounds be stated in the direct appeal or PCR application. Rule 203 SCACR; S.C. Code Ann. § 17-27-10, et seq.; S.C. Code Ann. § 17-27-90; Blakeley v. Rabon, 221 S.E.2d 767 (S.C. 1976). Strict time deadlines govern direct appeals and the filing of a PCR in the South Carolina courts. A PCR must be filed within one year of judgment, or if there is an appeal, within one year of the appellate court decision. S.C. Code Ann. § 17-27-45.
Furthermore, in filing a petition for habeas relief in the federal court, a petitioner may present only those issues that were presented to the South Carolina Supreme Court or the South Carolina Court of Appeals. See State v. McKennedy, 559 S.E.2d 850, 853 (S.C. 2002) (holding “that in all appeals from criminal convictions or post-conviction relief matters, a litigant shall not be required to petition for rehearing and certiorari following an adverse decision of the Court of Appeals in order to be deemed to have exhausted all available state remedies respecting a claim of error.”) (quoting In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief, 471 S.E.2d 454, 454 (S.C. 1990)).
b. Procedural Bypass
Procedural bypass, sometimes referred to as procedural bar or procedural default, is the doctrine applied when a petitioner who seeks habeas corpus relief as to an issue failed to raise that issue at the appropriate time in state court and has no further means of bringing that issue before the state courts. In such a situation, the person has bypassed his state remedies and, as such, is procedurally barred from raising the issue in his federal habeas petition. Procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See Smith v. Murray, 477 U.S. 527, 533 (1986). Bypass can occur at any level of the state proceedings if the state has procedural rules that bar its courts from considering claims not raised in a timely fashion.
The South Carolina Supreme Court will refuse to consider claims raised in a second appeal that could have been raised at an earlier time. Further, if a prisoner has failed to file a direct appeal or a PCR and the deadlines for filing have passed, he is barred from proceeding in state court. If the state courts have applied a procedural bar to a claim because of an earlier default in the state courts, the federal court honors that bar. As the United States Supreme Court explains: [state procedural rules promote] not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case. Reedv. Ross, 468 U.S. 1, 10-11 (1984).
However, if a federal habeas petitioner can show both (1) “‘cause' for noncompliance with the state rule[,]” and (2) “‘actual prejudice resulting from the alleged constitutional violation[,]'” the federal court may consider the claim. Murray, 477 U.S. at 533 (quoting Wainwright v. Sykes, 433 U.S. 72, 84 (1977)). When a petitioner has failed to comply with state procedural requirements and cannot make the required showing of cause and prejudice, the federal courts generally decline to hear the claim. Murray v. Carrier, 477 U.S. 478, 496 (1986).
If a federal habeas petitioner has failed to raise a claim in state court and is precluded by state rules from returning to state court to raise the issue, he has procedurally bypassed his opportunity for relief in the state courts and in federal court. A federal court is barred from considering the filed claim (absent a showing of cause and actual prejudice). In such an instance, the exhaustion requirement is technically met and the rules of procedural bar apply. See Teague v. Lane, 489 U.S. 288, 297-98 (1989); Matthews, 105 F.3d at 915 (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996).
3. Cause and Actual Prejudice
Because the requirement of exhaustion is not jurisdictional, this court may consider claims that have not been presented to the state courts in limited circumstances in which a petitioner shows sufficient cause for failure to raise the claim and actual prejudice resulting from the failure, Coleman, 501 U.S. at 750, or that a “fundamental miscarriage of justice” has occurred. Murray, 477 U.S. at 495-96. A petitioner may prove cause if he can demonstrate ineffective assistance of counsel relating to the default, show an external factor which hindered compliance with the state procedural rule, or demonstrate the novelty of a particular claim. Id. Absent a showing of “cause,” the court is not required to consider “actual prejudice.” Turner v. Jabe, 58 F.3d 924 (4th Cir. 1995). However, if a petitioner demonstrates sufficient cause, he must also show actual prejudice in order to excuse a default. Murray, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error.
D. Analysis
1. Procedurally-Barred Grounds
Respondent argues Petitioner's Grounds One through Five, Nine, and Ten in his habeas petition are procedurally barred because the PCR court did not address these grounds in its order. ECF No. 31 at 6-8. The undersigned finds Petitioner's Grounds One through Five, Nine, and Ten were not ruled upon by the South Carolina PCR court and therefore these grounds are not preserved for review. See, e.g., Coleman v. Thompson, 501 U.S. 722 (1991) (holding issue not properly raised to state's highest court, and procedurally impossible to raise there now, is procedurally barred from review in federal habeas); Pruitt v. State, 423 S.E.2d 127 (S.C. 1992) (holding issue must be raised to and ruled on by the PCR judge in order to be preserved for review). Consequently, federal habeas review of the Petitioner's Grounds One through Five, Nine, and Ten claims are barred absent a showing of cause and actual prejudice, or actual innocence. Wainwright v. Sykes, 433 U.S. 72, 87 (1977).
2. Cause and Prejudice
Petitioner has not shown sufficient cause and prejudice to excuse the default of his Grounds One through Five, Nine, and Ten claims. 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 claim 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.
The existence of cause must ordinarily turn on whether the prisoner can show some objective factor external to the defense impeded counsel's or his efforts to comply with the state's procedural rule. Murray, 477 U.S. at 488. Petitioner's contention he exhausted all his state court remedies, see ECF No. 38 at 1, is incorrect. The record shows Petitioner failed to raise the above referenced grounds to the PCR court, and he has not articulated any cause for procedurally defaulting these claims. Petitioner had a trial, an appeal, a PCR hearing, and a PCR appeal in which to raise these issues. However, he failed to raise them, raise them properly, or preserve the issues for habeas review. Petitioner's argument that he is now unable to exhaust these claims due to South Carolina Rules and case law, see ECF No. 38 at 1-2, is insufficient to establish cause or prejudice.
In the alternative, Petitioner must show a miscarriage of justice. To demonstrate a miscarriage of justice, Petitioner must show he is actually innocent. Actual innocence is defined as factual innocence, not legal innocence. Bousley v. United States, 523 U.S. 614, 622 (1998). To pass through the actual-innocence gateway, a petitioner's case must be “truly extraordinary.” Schlup v. Delo, 513 U.S. 298, 327 (1995). The court's review of the record does not support a showing of actual innocence. Therefore, the procedural bar applies to Petitioner's Ground One through Five, Nine, and Ten.
3. Merits
a. Ground Six
Petitioner alleges his trial counsel was ineffective when he cross-examined a witness and opened the door for testimony about Petitioner's co-defendants although trial counsel and the solicitor had agreed to keep out evidence of, and the status of, the co-defendants during Petitioner's trial. ECF No. 1 at 14.
The PCR court denied this ineffective assistance of counsel claim finding trial counsel was not deficient. App. 700-703. The PCR court identified the testimony at issue as follows:
Q: So when he reinitiated the interview, according to him, basically, he told you all, okay, I was lying, now I'm going to tell you what really happened, can you sum it up, something like that? Do you want me to say it a different way?
A: I'll say exactly what he told me. He said as we're walking out, he said, James cut a deal, didn't he; that is what he said to me. (Tr. 466).App. 700-701. The PCR court reviewed counsel's testimony at the PCR hearing concerning this exchange and noted counsel asked what he believed was a closed question that would not open the door to the testimony that was offered. App. 701-702. The PCR court further found counsel appropriately responded to the incriminating statement by moving for a mistrial and inquiring with the court about the scope of questioning on the issues on re-direct. Id. The PCR court also found trial counsel indicated he did not request a curative instruction as he did not want to draw attention to the statement which was an objectively reasonable trial strategy. Id. The PCR court also found that given the other incriminating evidence against Petitioner, including Petitioner was identified by his co-defendants, was caught on tape with the murder weapon, received text messages signaling Petitioner to enter the home, and admitted to being present at the time of the murders, Petitioner cannot show he was prejudiced by his counsel eliciting this statement. App. 702-703.
Respondent moves for summary judgment on this claim asserting the PCR judge reasonably denied relief on this ground. ECF No. 31 at 15.
In his response in opposition, Petitioner does not address this claim and appears to rely on the arguments made in his habeas petition. ECF No. 38.
The undersigned finds Petitioner's arguments are insufficient to satisfy the Strickland test. Petitioner has failed to show by clear and convincing evidence the PCR court reached an unreasonable factual determination that Petitioner (a) failed to satisfy his burden in proving trial counsel was deficient when he cross examined a witness and opened the door to potentially incriminating information, and (b) failed to show trial counsel's eliciting this testimony led to Petitioner's conviction given the evidence of Petitioner's guilt. Petitioner has also failed to show the PCR court unreasonably applied United States Supreme Court precedent in deciding these claims. Accordingly, Petitioner has failed to overcome the deferential standard of review accorded the state PCR court's determinations of these issues. Williams v. Taylor, 529 U.S. 420 (2000); Bell v. Jarvis, 236 F.3d 149, 157-58 (4th Cir. 2000); 28 U.S.C. § 2254(e)(1) (finding the determination of a factual issue by the state court shall be presumed correct unless rebutted by clear and convincing evidence). The undersigned recommends Respondent be granted summary judgment on Petitioner's Ground Six claim.
b. Ground Seven
Petitioner alleges his trial counsel was ineffective in failing to challenge the procedure the trial court used during the solicitor's Batson challenges, and in failing to articulate a race-neutral reason for striking the challenged jurors. ECF No. 1 at 15.
Batson v. Kentucky, 476 U.S. 79 (1986) (holding parties are constitutionally prohibited from exercising peremptory challenges to exclude jurors based on race).
The PCR court denied this Ground finding Petitioner failed to meet his burden in establishing deficiency or prejudice on his claim that counsel was ineffective concerning the Batson procedure. App. 698-700. The PCR court reviewed the trial transcript and trial counsel's testimony at the PCR hearing, and noted trial counsel provided race neutral reasons, such as their background and demeanors in the courtroom, as to why he struck the white jurors during jury selection. App. 699-700. The PCR court explained that although the trial judge found counsel's explanation insufficient, this finding was not rooted in whether counsel provided a race neutral reason at all. Id. The PCR court explained that counsel was not required to obtain a favorable decision from a judge to avoid a finding of deficiency. Id. The PCR court also found Petitioner failed to show that but for counsel being unsuccessful in executing his preferred peremptory strikes, the outcome at trial would have been different. App. 700.
Respondent moves for summary judgment on Petitioner's Ground Seven claim and contends the PCR court reasonably denied this claim finding Petitioner had not established ineffective assistance or prejudice. ECF No. 31 at 16-18.
In his Response in Opposition, Petitioner refers the court to his original habeas petition. ECF No. 38.
After a review of the record, the undersigned finds Petitioner has failed to show the PCR court unreasonably applied United States Supreme Court precedent in deciding this issue. Petitioner has also not shown by clear and convincing evidence that the court reached an unreasonable factual determination of this issue given the evidence and record before it. The undersigned finds the trial transcript and the testimony during the PCR hearing, including the race neutral reasons counsel articulated for his strikes and the lack of prejudice resulting from the Batson hearing, supports the PCR court's finding that counsel was not deficient. The undersigned recommends summary judgment be granted as to Ground Seven.
c. Ground Eight
Petitioner alleges his right to a preliminary hearing was violated when the court waived Petitioner's right to a hearing without Petitioner or his attorney being present. ECF No. 1 at 16.
Respondent moves for summary judgment on this Ground arguing Petitioner's claim is solely a matter of state law and is not cognizable on federal habeas. ECF No. 31 at 18-19.
In his opposition to summary judgment, Petitioner contends if he was granted a preliminary hearing, he would have been able to challenge the arrest warrant and supporting affidavits. ECF No. 38 at 3-4. Petitioner claims his challenge would have resulted in the arrest warrant being voided and the subsequent search being thrown out. Id.
Petitioner's allegations cannot serve as a basis for a federal habeas claim. See, e.g., 28 U.S.C. § 2254(a) (a petition for writ of habeas corpus should be granted “only on the ground that [petitioner] is in custody in violation of the Constitution or laws or treaties of the United States.”); State v. McClure, 289 S.E.2d 158 (S.C. 1982) (“The defendant's right to request a preliminary hearing is provided solely by state statute. It is not required by either the State or Federal Constitution.”); Simmons v. Bazzle, C/A No. 0:08-1028-PMD-PJG, 2009 WL 823302, at *5 (D.S.C. Mar. 26, 2009) (finding “a defendant does not have a constitutional right to a preliminary hearing, and he has not made a showing that his failure to have one violated his constitutionally protected federal rights in any way.”). As Petitioner is not entitled to federal habeas relief on this claim, the undersigned recommends Ground Eight be dismissed.
IV. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends Respondent's Motion for Summary Judgment, ECF No. 32, be granted and the Petition be dismissed with prejudice.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. [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 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).