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Sturgeon v. Warden, Perry Corr. Inst.

United States District Court, D. South Carolina, Orangeburg Division

August 11, 2016

Brian W. Sturgeon, #316514, Petitioner,
v.
Warden, Perry Corr. Inst., Respondent.

          OPINION & ORDER

          Henry M. Herlong, Jr. Senior United States 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.[1] 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.

         I. Factual and Procedural Background

         Sturgeon 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.)

         Sturgeon 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.[2] (§ 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.[3] (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.

         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). “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).

         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, ” 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).

         C. Ineffective Assistance ...


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