United States District Court, D. South Carolina, Charleston Division
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
MARY GORDON BAKER, Magistrate Judge.
The Petitioner, a state prisoner, seeks habeas relief pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Respondent's Motion for Summary Judgment. (Dkt. No. 25; see also Dkt. No. 24.)
Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Rule 73.02(B)(2)(c), D.S.C., this magistrate judge is authorized to review the instant petition for relief and submit findings and recommendations to the District Court.
The Petitioner brought this habeas action on September 4, 2014. (See Dkt. No. 1 at 18 of 18; Dkt. No. 1-2 at 1 of 2.) On January 14, 2015, Respondent filed a Motion for Summary Judgment. (Dkt. No. 25; see also Dkt. No. 24.) By order filed January 15, 2015, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Petitioner was advised of the summary judgment procedure and the possible consequences if he failed to adequately respond to the motion. (Dkt. No. 26.) Petitioner filed a Response in Opposition to the Motion for Summary Judgment on or about February 17, 2015. (Dkt. No. 29.)
The Petitioner is currently confined at Kirkland Correctional Institution of the South Carolina Department of Corrections ("SCDC"). In September of 2004, the Lee County Grand Jury indicted Petitioner on the following counts: rioting, assaulting a correctional officer, carrying or concealing a weapon by an inmate of a correctional facility, inciting to riot, and two counts of taking a hostage. (See R. at 1014-16.) Petitioner was represented at trial by Bryan Doby, Esquire. (See R. at 1, 11.) Petitioner and his co-defendant proceeded to a jury trial before the Honorable Thomas W. Cooper, Jr. (See R. at 1-929.) The jury convicted Petitioner as charged, and Judge Cooper sentenced Petitioner to life without parole on each count of taking a hostage; ten years for rioting; five years for assaulting a correctional officer; ten years for carrying and concealing a weapon by an inmate of a correctional facility; and ten years for inciting to riot. (R. at 926-28.) The sentences for assaulting a correctional officer, carrying and concealing a weapon by an inmate of a correctional facility, and the two counts of taking a hostage run consecutive to the sentence Petitioner was serving at the time of sentencing but concurrent to all other sentences. (R. at 926-28.) The sentences for rioting and inciting to riot run concurrent to all other sentences. (R. at 926-28.)
Petitioner appealed and was represented by Eleanor Duffy Cleary, Esquire, of the South Carolina Commission on Indigent Defense. (See Dkt. No. 24-1.) In an Anders brief filed on April 4, 2007, Petitioner raised the following issue:
The trial judge erred in admitting a video depiction of the prison dorm taken after the riot and showing the damage, because the video was highly inflammatory and its probative value was outweighed by its prejudicial value.
(Dkt. No. 24-1 at 4 of 12.) Ms. Cleary also filed a petition to be relieved as counsel. (Id. at 10-11 of 12.) Petitioner filed a pro se response, wherein Petitioner raised the following issues (verbatim):
The appellant states he was denied due process by several separate comments the prosecutor made to the jury during closing argument which was improper.
The appellant states his confrontation right was violated under the Confrontation Clause, when co-defendant incriminating audio/tape recording was introduced into evidence.
(Dkt. No. 24-2 at 9 of 23.) In an unpublished opinion filed on September 5, 2008, the South Carolina Court of Appeals dismissed the appeal and granted counsel's motion to be relieved. (Dkt. No. 24-3.) The remittitur was issued on September 23, 2008. (Dkt. No. 24-4.)
Petitioner filed an application for post-conviction relief ("PCR") on May 4, 2009, wherein he raised various claims of ineffective assistance of counsel. (R. at 943-52.) Specifically, Petitioner alleged as follows (verbatim):
1. Trial counsel was ineffective when he failed to object to several separate comments by the prosecutor during closing arguments....
2. Trial counsel rendered ineffective assistance during trial when he failed to object to a incriminating audio/tape recording by applicant co-defendant J.J. Lynch, which raise the issue of a confrontation clause violation....
3. Trial counsel was ineffective by failing to request a mistrial when forensic document examiner of handwriting read applicant un-redacted version of self incriminating statement to jury members....
4. Trial counsel was ineffective by failing to object to applicant incriminating statement that was being introduced into evidence which applicant content his Fifth Amendment and Sixth Amendment right were violated....
5. Trial counsel was ineffective by failure to object to a admitting video depiction of the prison dorm taken after the riot and damage, because the video was highly inflammatory and it probative ...