United States District Court, D. South Carolina, Charleston Division
Richard Mark Gergel United States District Court Judge
This matter is before the Court on the Report and Recommendation of the Magistrate Judge, recommending summary judgment for Respondent on the petition for habeas relief pursuant to 28 U.S.C. § 2254. The Court adopts the Report and Recommendation as the Order of the Court, grants summary judgment for Respondent, and dismisses the petition.
After a July 12-16, 2010 jury trial in Horry County, South Carolina, Petitioner was convicted of murder and armed robbery. He was subsequently sentenced to concurrent sentences of 34 years imprisonment for murder and 30 years for armed robbery.
Petitioner appealed his convictions and sentences, asserting that the trial court erred in allowing a police officer to testify that a gunshot wound to the victim's hand was a defensive wound that could not have occurred while the victim was reaching for his handgun, because the officer was not qualified to offer that opinion. On June 19, 2013, the South Carolina Court of Appeals affirmed Petitioner's convictions.
Petitioner filed an application for post-conviction relief (PCR) on August 28, 2013. In his application, he asserted that his trial counsel, Scott Bellamy, had been ineffective for numerous reasons, and that the assistant solicitor, Heather von Herrmann, engaged in prosecutorial misconduct by knowingly using perjured testimony from Corey Smalls, a former co-defendant. The PCR court held an evidentiary hearing on October 29, 2014. Petitioner, Mr. Smalls, Ms. von Herrmann, and Mr. Bellamy testified at the hearing. On November 17, 2014, the PCR court denied the application.
Petitioner appealed the dismissal of his PCR application on March 23, 2015. Counsel for Petitioner filed a Johnson petition for a writ of certiorari, only raising the issue of ineffective assistance of counsel in failing to request jury instructions on lesser-included offenses. Petitioner filed apro se response to the Johnson Petition raising the issue of prosecutorial misconduct. The South Carolina Supreme Court denied certiorari, issuing its remittitur on August 10, 2015.
Petitioner timely filed the present petition for habeas relief on September 14, 2015, asserting three grounds for relief: (1) the trial court erred in allowing police officer testimony that a gunshot wound to the victim's hand was a defensive wound, (2) trial counsel was ineffective in failing to request jury instructions on lesser-included offenses, and (3) prosecutorial misconduct in use of perjured testimony from Mr. Smalls. On January 11, 2016, Respondent moved for summary judgment. The Magistrate Judge recommended summary judgment for Respondent on all asserted grounds for relief on March 21, 2016. Petitioner timely filed an objection to the Report and Recommendation as to Ground Three only.
II. Legal Standard
A. Report and Recommendation of the Magistrate Judge
The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made. The Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge. 28 U.S.C. § 636(b)(1).
When a proper objection is made to a particular issue, "a district court is required to consider all arguments directed to that issue, regardless of whether they were raised before the magistrate." United States v. George, 971 F.2d 1113, 1118 (4th Cir. 1992). However, "[t]he district court's decision whether to consider additional evidence is committed to its discretion, and any refusal will be reviewed for abuse." Doe v. Chao, 306 F.3d 170, 183 & n.9 (4th Cir. 2002). "[Attempts to introduce new evidence after the magistrate judge has acted are disfavored, " though the district court may allow it "when a party offers sufficient reasons for so doing." Caldwell v. Jackson, 831 F.Supp.2d 911, 914 (M.D. N.C. 2010) (listing cases).
B. 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 party ...