United States District Court, D. South Carolina, Charleston Division
OPINION & ORDER
HENRY M. HERLONG, Jr., Senior District Judge.
This matter is before the court for review of the Report and Recommendation of United States Magistrate Judge Mary Gordon Baker, made in accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina. Anthony Maurice Brown ("Brown") is a state prisoner seeking habeas corpus relief pursuant to 28 U.S.C. § 2254. In her Report and Recommendation, Magistrate Judge Baker recommends granting the Respondent's motion for summary judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Brown is currently incarcerated at the Broad River Correctional Institution, a South Carolina Department of Corrections ("SCDC") facility. In July 2009, Brown was indicted in South Carolina state court for murder, armed robbery, criminal conspiracy, and possession of a firearm during the commission of a violent crime. (Resp't Mem. Supp. Mot. Summ. J. Ex. 1 (PCR App. 29-40), ECF No. 11-1.) On July 7, 2010, Brown pled guilty as charged. (Id. Ex. 1 (PCR App. 1-27), ECF No. 11-1.) Brown was sentenced to thirty years' imprisonment for murder, thirty years' imprisonment for armed robbery, and five years' imprisonment for criminal conspiracy, all such terms to be served concurrently. (Id. Ex. 1 (PCR App. 26-27), ECF No. 11-1.) Brown was sentenced to five years' imprisonment for possession of a firearm during the commission of a violent crime, to be served consecutively to the other sentences. (Id. Ex. 1 (PCR App. 26-27), ECF No. 11-1.)
Brown did not file a direct appeal. However, on May 27, 2011, Brown filed an application for post-conviction relief ("PCR"). (Id. Ex. 1 (PCR App. 41-44), ECF No. 11-1.) A PCR hearing was held on December 7, 2012. (Resp't Mem. Supp. Mot. Summ. J. Ex. 1 (PCR App. 50-90), ECF No. 11-1.) On December 31, 2012, the PCR court denied Brown's PCR application and dismissed the petition. (Id. Ex. 1 (PCR App. 91-101), ECF No. 11-1.) Brown filed a Johnson petition for writ of certiorari with the South Carolina Supreme Court on August 13, 2013. (Id. Ex. 4 (Petition for Writ of Cert.), ECF No. 11-4.) On February 24, 2015, the South Carolina Court of Appeals denied the petition for writ of certiorari. (Id. Ex. 6 (Court of Appeals Order), ECF No. 11-6.)
Brown filed a federal petition for writ of habeas corpus on May 5, 2015. (§ 2254 Petition, ECF No. 1.) Brown alleges as follows: (1) his trial counsel was ineffective for failing to investigate the voluntariness of his confession; (2) his trial counsel was ineffective for failing to advise him of his right to direct appeal; (3) his trial counsel was ineffective for failing to advise him of his right to a jury trial; and (4) the trial judge erred by allowing the state to make findings of fact and conclusions of law in violation of statutory mandate. ( Id., generally, ECF No. 1.) On July 20, 2015, Respondent filed a motion for summary judgment. (Resp't Mot. Summ. J., ECF No. 10.) Brown responded on November 5, 2015. (Resp. Opp'n Mot. Summ. J., ECF No. 21.) On January 20, 2016, Magistrate Judge Baker issued a Report and Recommendation. (Report & Recommendation, ECF No. 27.) Within the initial deadline for objections to the Report and Recommendation, the court did not receive any objections from Brown. Having received no objections, the court issued an order on February 11, 2016, adopting the Report and Recommendation. (Feb. 11, 2016, Order, ECF No. 29.) However, based on the mailing date, Brown timely filed objections on February 4, 2016,  but the court did not receive his objections until after the court's order adopting the Report and Recommendation. (Objections, ECF No. 32.) Therefore, the court vacates the February 11, 2016 order adopting the Report and Recommendation and the court will consider Brown's timely objections.
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, " the petitioner 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 ...