United States District Court, D. South Carolina, Greenville Division
PATRICK MICHAEL DUFFY United States District Judge.
matter is before the Court upon Petitioner Virgil
Culbreath’s (“Culbreath” or “the
Petitioner”) pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. On April 30, 2015,
the Respondent filed a motion for summary judgment, and after
being granted several extensions of time to respond, the
Petitioner filed a response in opposition on August 17, 2015,
and another response on September 10, 2015. Pursuant to 28
U.S.C. 636(b)(1)(B) and the Local Rules for the District of
South Carolina, the matter was referred to a United States
Magistrate Judge for review. On January 27, 2016, Magistrate
Judge Kevin McDonald issued a report and recommendation
(“R&R”) outlining the issues and recommending
that the Court grant the Respondent’s motion for
summary judgment. Culbreath filed objections to the R&R,
and the matter is ripe for review.
Petitioner, who is currently incarcerated at the Walden
Correctional Institution in the South Carolina Department of
Corrections (“SCDC”), was indicted by the
Edgefield County Grand Jury in June 2004 on drug-related
charges. The Honorable Doyet A. Early, III, South Carolina
Circuit Judge, presided over a jury trial from November
17-19, 2004, at which Martin C. Puetz, Esq., represented the
Petitioner. The jury found the Petitioner guilty, and Judge
Early sentenced him to 15 years in prison.
after sentencing, the Petitioner moved for a new trial and
requested additional time, which the judge allowed. Trial
counsel filed a written motion for a new trial on November
29, 2004, and on January 24, 2005, trial counsel filed a
brief in support of the motion. The State filed its response
on February 11, 2005. The Petitioner’s trial counsel
also submitted an affidavit from the Petitioner, a brief, and
exhibits. By order dated March 30, 2005, Judge Early denied
the motion. Trial counsel filed a supplement to the motion on
April 27, 2005, and the Petitioner appealed.
Defender Eleanor Duffy Cleary of the South Carolina
Commission on Indigent Defense, Division of Appellate
Defense, represented the Petitioner on appeal and filed a
final brief with the South Carolina Court of Appeals on June
19, 2007, raising the following issue: “Whether the
trial court erred in refusing to grant a mistrial after the
State’s key witness mentioned several times prior drug
dealings with appellant?” (Entry 23-7 at 3.)
State filed its final brief on June 7, 2007. On March 8,
2008, the South Carolina Court of Appeals affirmed by
published opinion. State v. Culbreath, 659 S.E.2d
268, 270 (S.C. Ct. App. 2008). The Petitioner did not file a
petition for rehearing and did not seek a writ of certiorari
from the Supreme Court of South Carolina. The South Carolina
Court of Appeals issued the remittitur on April 3, 2008.
29, 2008, the Petitioner filed an application for
post-conviction relief (“PCR”) in which he raised
the following claims: ineffective assistance of trial counsel
and ineffective assistance of appellate counsel. (Entry 23-3
at 160.) The Respondent filed the State’s return on
December 19, 2008, and moved to dismiss based on the
non-specific nature of the allegations. Trisha A. Blanchette,
Esq., represented the Petitioner, and on January 8, 2009, she
filed a response in opposition raising the following claims:
Ineffective Assistance of Counsel
a. Trial counsel was ineffective for his failure to properly
prepare and investigate prior to trial.
i. Failure to obtain a preliminary hearing.
ii. Failure to obtain a complete copy of discovery, the
indictments, and a copy or transcript of the audio/video
b. Trial counsel was ineffective for his failure to make
proper objections to discovery violations in order to
preserve such issues for appeal.
i. Failure to object regarding his receipt of the indictments
on the day of trial.
ii. Failure to object when he was not told that the
co-defendant would be a state witness prior to the day of
iii. Failure to object regarding his failure to receive a
copy or transcript of the audio/video evidence.
iv. Failure to object when the State introduced statements
not previously provided to the defense.
c. Trial counsel was ineffective for his failure to make
contemporaneous objections to hearsay, prior bad act, and bad
d. Trial counsel was ineffective when he opened the door to
prior bad act testimony from the confidential informant.
e. Trial counsel was ineffective for his failure to properly
object to the chain of custody and cross-examine the
State’s chemist when the illegal substance reported on
the chain of custody and in the reports did not match the
substance introduced into evidence.
f. Trial counsel was ineffective for his failure to object to
the Solicitor’s closing argument; specifically, failure
to object to the Solicitor’s vouching for a State
g. Trial counsel was ineffective for his failure to object to
the jury instructions handed down by the Court.
Ineffective Assistance of Appellate Counsel (Eleanor Duffy
a. Appellate counsel was ineffective for her failure to raise
meritorious issues on appeal.
i. Failure to raise Batson challenge.
ii. Failure to raise defense counsel’s and
Applicant’s motion for a continuance.
iii. Failure to raise chain of custody.
iv. Failure to raise motion for directed verdict.
b. Appellate counsel was ineffective for her failure to
properly raise the issue on appeal, failure to grant a
mistrial for prior bad act testimony.
(Entry 23-3 at 168-69.) On May 11, 2010, PCR counsel filed an
amendment to the application with the following additional
1. Trial counsel was ineffective for his failure to address
the procurement of the indictment and the fact that the
Applicant’s mother was member of the grand jury.
2. Trial counsel was ineffective for his failure to move to
suppress the arrest warrant and address the reliability of
the confidential informant.
3. Trial counsel was ineffective for his failure to properly
prepare and utilize witness Monique (Jatawa) Watson.
4. Trial counsel was ineffective for his failure to raise or
plead an entrapment defense.
5. Trial counsel was ineffective for his failure to object to
the reasonable doubt instruction since it was in conflict
with the Court’s charge on the trafficking statute.
(Entry 23-4 at 2.) Then, on September 7, 2010, PCR counsel
filed an additional amendment, addition the following:
1. Trial counsel was ineffective for his failure to fully
address the inconsistencies in the arrest warrant, search