McGaha v. Stirling, Civil Action No. 6:18-01736-RMG

• Court: United States District Courts. 4th Circuit. United States District Court of South Carolina
• Writing for the Court: Richard Mark Gergel United States District Court Judge
• Parties: Marshall Dewitt McGaha, Petitioner, v. Bryan P. Stirling, Respondent.
• Docket Number: Civil Action No. 6:18-01736-RMG
• Decision Date: 13 August 2019

Marshall Dewitt McGaha, Petitioner,
v.
Bryan P. Stirling, Respondent.

Civil Action No. 6:18-01736-RMG

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA GREENVILLE DIVISION

August 13, 2019

ORDER AND OPINION

Before the Court is the Report and Recommendation ("R & R") of the Magistrate Judge (Dkt. No. 42) recommending that the Court adopt Respondent's motion for summary judgment (Dkt. No. 20) and deny Petitioner's motion for subpoena as moot. (Dkt. No. 38.) Also before the Court is Petitioner's motion to extend time to object to the R & R. (Dkt. No. 45.) For the reasons set forth below, the Court adopts the R & R as the Order of the Court to dismiss the petition and deny the subpoena request as moot. In addition, Petitioner's motion to extend time is denied as moot.

I. Background

Petitioner Marshall Dewitt McGaha is a prisoner at the Broad River Correctional Institution in the South Carolina Department of Corrections. He filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Dkt. No. 1.) Petitioner was found guilty by a jury trial of: two counts of lewd act upon a child; and two counts of first degree criminal sexual conduct ("CSC") with a minor. (Dkt. No. 19-1 at 279-286.) Petitioner was sentenced to two terms of life imprisonment on the CSC charges, fifteen years consecutive for the lewd act upon a child charge, and fifteen years consecutive for the second lewd act charge. (Id.) Petitioner appealed his conviction, which the South Carolina Court of Appeals confirmed on June 26, 2013. (Dkt. No. 19-

Page 2

4.) Petitioner filed a PCR Application on May 2, 2014 bringing general claims of ineffective assistance of counsel, which were denied by court order after an evidentiary hearing. (Dkt. No. 19-1 at 293-299; 353-359.) On July 2, 2015, Petitioner filed a notice of appeal (Dkt. No. 19-6) and filed a petition for writ of certiorari on February 22, 2016. (Dkt. No. 19-7.) The South Carolina Supreme Court initially granted the petition, but on February 21, 2018, the court dismissed the writ as improvidently granted. (Dkt. No. 19-11.) The court issued a remittur on March 9, 2018 and it was filed by the Greenville County Clerk of Court on March 12, 2018. (Dkt. No. 19-12.)

The Petitioner filed a writ of habeas corpus on June 20, 2018 and now seeks relief on seven grounds.¹ (Dkt. No. 1.) Respondent filed a motion for summary judgment to dismiss the petition followed by petitioner's opposition, respondent's reply, and petitioner's sur-reply. (Dkt. Nos. 19; 20; 23; 26-28.) Also before the court is petitioner's motion for subpoena and related briefing. (Dkt. Nos. 38; 39; 41.) On July 17, 2019, Petitioner filed a motion to extend time to object to the R & R. (Dkt. No. 45.) He filed his objections on July 17, 2019 and August 12, 2019. (Dkt. Nos. 47;50.)

II. Legal Standard

A. Review of R & R

The Magistrate Judge makes a recommendation to the Court that has no presumptive weight and the responsibility to make a final determination remains with the Court. See, e.g., 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 judge." 28 U.S.C. §

Page 3

636(b)(1)(C). Where there are specific objections to the R & R, the Court "makes a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id. In the absence of objections, the Court reviews the R & R to "only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed. R. Civ. P. 72 advisory committee's note; see also Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983) ("In the absence of objection . . . we do not believe that it requires any explanation."). Petitioner filed objections to the R & R and the Court conducts a de novo review.

B. Motion for Summary Judgment

Summary judgment is appropriate if a party "shows that there is no genuine dispute as to any material fact" and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In other words, summary judgment should be granted "only when it is clear that there is no dispute concerning either the facts of the controversy or the inferences to be drawn from those facts." Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987). "In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities in favor of the nonmoving party." HealthSouth Rehab. Hosp. v. Am. Nat'l Red Cross, 101 F.3d 1005, 1008 (4th Cir. 1996). The movant has the initial burden of demonstrating that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, to survive summary judgment the respondent must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, "[c]onclusory or speculative allegations do not suffice, nor does a 'mere scintilla of evidence'" in support of the non-moving party's case. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002) (quoting Phillips v. CSX Transp., Inc., 190 F.3d 285, 287 (4th Cir. 1999)).

Page 4

C. Federal Habeas Relief Pursuant to 28 U.S.C. § 2254

A state prisoner who challenges matters "adjudicated on the merits in State court" can obtain relief in federal court if he shows that the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court" or "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). When reviewing a state court's application of federal law, "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, 410 (2000). The state court's application is unreasonable if it is "objectively unreasonable, not merely wrong." White v. Woodall, 572 U.S. 415, 419 (2014). Meaning, the state court's ruling must be "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 562 U.S. 86, 103 (2011).

The state court's determination is presumed correct and the petitioner bears the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The state court's decision "must be granted a deference and latitude that are not in operation" when the case is considered on direct review. Harrington, 562 U.S. at 101. This is because habeas corpus in federal court exists only to "guard against extreme malfunctions in the state criminal justice systems." Id. at 102 (citation and internal quotation marks omitted). Accordingly, pursuant to 28 U.S.C. § 2254(d), a federal habeas court must (1) determine what arguments or theories supported or could have supported the state court's decision; and then (2) ask whether it is possible that fairminded jurists could disagree that those arguments or theories are inconsistent with the holding

Page 5

of a prior decision of the United States Supreme Court. Harrington, 562 U.S. at 102. "If this standard is difficult to meet, that is because it was meant to be." Id.

Before the petitioner may pursue federal habeas relief to this standard, he must first exhaust his state court remedies. 28 U.S.C. § 2254(b)(1)(A). Meaning, the petitioner "must present his claims to the state's highest court." Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997) (abrogated on other grounds by United States v. Barnette, 644 F.3d 192 (4th Cir. 2011)). This requires the petitioner to have "fairly present[ed] to the state court both the operative facts and the controlling legal principles associated with each claim." Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004) (internal quotation marks omitted). A federal habeas court should not review the merits of claims that would be found to be procedurally defaulted or barred under independent and adequate state procedural rules. Lawrence v. Banker, 517 F.3d 700, 714 (4th Cir. 2008). For a procedurally defaulted claim to be properly considered by the federal habeas court, the petitioner must "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, 750 (1991).

III. Discussion

A. Motion for Summary Judgment (Dkt. No. 20)

After careful review of the R & R, to which Petitioner filed objections, as well as the parties' arguments on summary judgment (Dkt. Nos. 19; 20; 23; 26-28; 47; 49, 50), the Court finds that the Magistrate Judge ably addressed the issues and correctly concluded that Respondent's motion for summary judgment should be granted.

The Magistrate Judge properly concluded that all of petitioner's grounds for relief (one through seven) were untimely filed. (Dkt. No. 42 at 8-9.) Pursuant to 28 U.S.C. § 2244(d)(1), a "one-year period of limitation shall apply to an application for a writ of habeas corpus by a person

Page 6

in custody pursuant to the judgment of a State court." 28 U.S.C. §2244(d)(1). The limitations period shall run from the latest of "the date on which the judgment became final by the...