United States District Court, D. South Carolina, Orangeburg Division
OPINION & ORDER
HENRY M. HERLONG, Jr., Senior District Judge.
This matter is before the court with the Report and Recommendation of United States Magistrate Judge Kaymani D. West, made in accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 of the District of South Carolina. Samuel Harmon ("Harmon") is a state prisoner seeking habeas corpus relief pursuant to 28 U.S.C. § 2254. In her Report and Recommendation, Magistrate Judge West recommends granting the Respondent's motion for summary judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Harmon is currently incarcerated at the Broad River Correctional Institution, a South Carolina Department of Corrections ("SCDC") facility. In April 2007, Harmon was indicted by the Lexington County Grand Jury for possession of a firearm or knife during commission of a violent crime, murder, assault with intent to kill, and assault and battery with intent to kill. (Resp't Mem. Supp. Mot. Summ. J. 1-2, ECF No. 8.) After a jury trial, Harmon was found guilty on May 7, 2008. (Id. Ex. 3 (App. 562), ECF No. 8-3.) Harmon was sentenced to life imprisonment for the murder conviction, five years' imprisonment for the possession of a weapon during the commission of a violent crime conviction, ten years' imprisonment for the assault with intent to kill conviction, and fifteen years' imprisonment for the assault and battery with intent to kill conviction ("ABHAN"). (Id. Ex. 3 (App. 584), ECF No. 8-3.) The sentences for the murder conviction, the assault with intent to kill conviction and the possession of a weapon conviction were all to be served concurrently; the ABHAN conviction was to be served consecutive to the sentence for murder. (Id. Ex. 3 (App. 574), ECF No. 8.) Harmon moved for reconsideration of his sentence, but his motion was denied. (Id. Ex. 13 (Order on Mot. Reconsideration), ECF No. 8-13.)
Harmon appealed his conviction on or about October 6, 2008. (Id. at 16, ECF No. 8.) The South Carolina Court of Appeals affirmed Harmon's conviction and sentence in an unpublished opinion filed February 24, 2011. (Id. Ex. 3 (App. 639-40), ECF No. 8-3.) On August 4, 2011, Harmon filed an application for Post-Conviction Relief ("PCR"). (Id. Ex. 3 (App. 653-60), ECF No. 8-3.) A PCR hearing was held on January 31, 2013. (Id. Ex. 3 (App. 696-771), ECF No. 8-3.) On March 28, 2013, the PCR court denied Harmon's PCR Application in full. (Id. Ex. 3 (App. 772-785), ECF No. 8-3.) Harmon filed a petition for writ of certiorari with the South Carolina Supreme Court on January 9, 2014. (Id. Ex. 8 (Petition for Writ of Cert.), ECF No. 8-8.) The South Carolina Supreme Court denied the petition on August 7, 2014, and issued a remittitur on August 25, 2014. (Id. Ex. 11 (S.C. Sup.Ct. Order), ECF No. 8-11; Ex. 12 (Remittitur), ECF No. 8-12.)
Harmon filed a federal petition for writ of habeas corpus on April 14, 2015, alleging claims of ineffective assistance of counsel. (§ 2254 Petition, ECF No. 1.) Harmon alleged his trial counsel was ineffective in failing to object to: (1) testimony and references in his trial about his membership in a gang ("Ground One"); (2) the prosecutor making himself a witness during the trial of the case ("Ground Two"); and (3) the trial court's jury charge on accomplice liability ("Ground Three"). (Pet'r Mem. Supp. § 2254 Petition, generally, ECF No. 1-1.) On June 8, 2015, Respondent filed a motion for summary judgment. (Resp't Mot. Summ. J., ECF No. 9.) Harmon responded on July 27, 2015. (Resp. Opp'n Mot. Summ. J., ECF No. 13.) Respondent replied on August 6, 2015. (Resp't Reply, ECF No. 14.) On December 15, 2015, Magistrate Judge West recommended granting the Respondent's motion for summary judgment, and denying Harmon's § 2254 petition. (Report & Recommendation, generally, ECF No. 15.) Harmon timely filed objections on January 3, 2016. (Objections, ECF No. 16.)
II. DISCUSSION OF THE LAW
A. Summary Judgment Standard
Summary judgment is appropriate only "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). In deciding whether a genuine issue of material fact exists, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in his favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 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.
A litigant "cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another." Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985). "[W]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, disposition by summary judgment is appropriate." Monahan v. Cty. of Chesterfield, Va., 95 F.3d 1263, 1265 (4th Cir. 1996) (internal quotation marks and citation omitted). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Ballenger v. N.C. Agric. Extension Serv., 815 F.2d 1001, 1005 (4th Cir. 1987) (internal quotation marks and citation omitted).
B. Standard of Review in a § 2254 Petition
In addition to the standard that the court must employ in considering motions for summary judgment, the court must also consider the petition under the requirements set forth in 28 U.S.C. § 2254. Under § 2254(d),
[a]n 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 the 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, 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.
As "a determination of a factual issue made by a State court shall be presumed to be correct, " Harmon has "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). With respect to reviewing the state court's application of federal law, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.'" Humphries v. Ozmint, 397 F.3d 206, 216 (4th Cir. 2005) (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). Further, "an unreasonable application of federal law is different from an incorrect application of federal law, ' because an incorrect application of federal law is not, in all instances, objectively unreasonable." Id . (quoting Williams, 529 U.S. at 410). "Thus, to ...