United States District Court, D. South Carolina, Orangeburg Division
Brian W. Sturgeon, #316514, Petitioner,
Warden, Perry Corr. Inst., Respondent.
OPINION & ORDER
M. Herlong, Jr. Senior United States District Judge.
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. Brian W. Sturgeon
(“Sturgeon”) is a pro se state prisoner seeking
habeas corpus relief pursuant to 28 U.S.C. § 2254. In
her Report and Recommendation, Magistrate Judge West
recommends granting Respondent’s motion for summary
judgment and denying Sturgeon’s petition.
Factual and Procedural Background
is currently incarcerated at the Perry Correctional
Institution, a South Carolina Department of Corrections
facility. Sturgeon is serving two state court sentences of
thirty years’ imprisonment for voluntary manslaughter
and kidnapping, both running concurrently, and one state
court sentence of fifteen years’ imprisonment for
assault and battery with intent to kill
(“ABWIK”), running consecutively. (§ 2254
Petition 1, ECF No. 1.) His convictions were entered in the
Court of General Sessions for Greenville County, South
Carolina, on March 9, 2010. (Id. at 1, ECF No. 1.)
Sturgeon appealed his conviction and the South Carolina Court
of Appeals dismissed his appeal on December 2, 2011.
(Id. at 2, ECF No. 1.) The remittitur was filed on
December 20, 2011. (Return & Memorandum Ex. 6
(Remittitur), ECF No. 15-6.) On May 31, 2012, Sturgeon filed
an application for Post-Conviction Relief
(“PCR”). (Id. Ex. 1 (Appendix V.1:
221-227), ECF No. 15-1; id. Ex. 2 (Appendix V.2:
228-52), ECF No. 15-2.) A PCR hearing was held on June 18,
2014, and the PCR court denied Sturgeon’s PCR
application on August 1, 2014. (Id. Ex. 2 (Appendix
V.2: 259-94), ECF No. 15-2.) On August 20, 2014, Sturgeon
appealed the dismissal of his PCR application. (Id.
Ex. 7 (Notice of Appeal), ECF No. 15-7.) On April 20, 2015,
Sturgeon’s counsel filed a Johnson petition
for writ of certiorari, and on June 30, 2015, Sturgeon filed
a pro se response. (Id. Ex. 8 (Johnson
Petition), ECF No. 15-8; id. Ex. 9 (Pro Se
Response), ECF No. 15-9.) The South Carolina Supreme Court
denied certiorari on August 20, 2015, and issued a remittitur
on September 9, 2015. (Return & Memorandum Ex. 10 (Sup.
Ct. Order), ECF No. 15-10; id. Ex. 11 (Remittitur),
ECF No. 15-11.)
filed his petition for writ of habeas corpus on November 28,
2015, alleging one claim of trial court error and four claims
of ineffective assistance of counsel. (§ 2254 Petition,
generally, ECF No. 1; id. Ex. 2 (Envelope), ECF No.
1-2.) On March 8, 2016, Respondent filed a return and a
motion for summary judgment. (Return & Memorandum, ECF
No. 15; Def. Mot. Summ. J., ECF No. 16.) Sturgeon’s
response in opposition was received on April 19, 2016. (Pl.
Resp. Opp’n Def. Mot. Summ. J., ECF No. 23.) Respondent
replied on April 29, 2016. (Def. Reply Supp. Mot. Summ. J.,
ECF No. 25.) On July 11, 2016, Magistrate Judge West
recommended granting Respondent’s motion for summary
judgment and denying Sturgeon’s petition. (Report &
Recommendation, generally, ECF No. 26.) Sturgeon timely filed
objections on July 25, 2016. (Objections Ex. 1 (Envelope), ECF
No. 28-1.) Respondent replied to Sturgeon’s objections
on August 10, 2016. (Def. Reply to Objections, ECF No. 30.)
This matter is now ripe for consideration.
Discussion of the Law
Summary Judgment Standard
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.
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). “Where 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. County of
Chesterfield, 95 F.3d 1263, 1265 (4th Cir. 1996).
“[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).
Standard of Review in a § 2254 Petition
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.
“a determination of a factual issue made by a State
court shall be presumed to be correct, ” Sturgeon has
“the burden of rebutting the presumption of correctness
by clear and convincing evidence.” § 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 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 grant [Sturgeon’s]
habeas petition, [the court] must conclude that the state
court’s adjudication of his claims was not only
incorrect, but that it was objectively unreasonable.”
McHone v. Polk, 392 F.3d 691, 719 (4th Cir. 2004).
Ineffective Assistance ...