United States District Court, D. South Carolina, Greenville Division
Jeremy R. Phillips, #325588, Petitioner,
Warden Scott Lewis,  Respondent.
OPINION & ORDER
M. HERLONG, JR. Senior United States District Judge.
matter is before the court for review of the Report and
Recommendation of United States Magistrate Judge Kevin F.
McDonald, made in accordance with 28 U.S.C. § 636(b)(1)
and Local Civil Rule 73.02 for the District of South
Carolina. Jeremy R. Phillips ("Phillips")
is a state prisoner seeking habeas corpus relief pursuant to
28 U.S.C. § 2254. In his Report and Recommendation,
Magistrate Judge McDonald recommends granting the
Respondent's motion for summary judgment and denying
Factual and Procedural Background
is currently incarcerated at the Perry Correctional
Institution, a South Carolina Department of Corrections
("SCDC") facility. In March 2007, Phillips was
indicted in South Carolina state court for murder and first
degree arson. (Resp't Mem. Supp. Mot. Summ. J. Ex. 4
(App. 789-90, 792-93), ECF No. 28-4.) After a jury trial,
Phillips was found guilty on December 7, 2007. (Id.
Ex. 3 (App. 597-98), ECF No. 28-3.) Phillips was sentenced to
life imprisonment for murder and thirty years'
imprisonment for arson, to be served concurrently.
(Id. Ex. 3 (App. 601-02), ECF No. 28-3.)
appealed his convictions on December 13, 2007. (Id.
Ex. 5, generally, ECF No. 28-5.) The South Carolina Court of
Appeals affirmed Phillips' convictions on July 14, 2010.
(Id. Ex. 8 (Court of Appeals Order), ECF No. 28-8.)
On August 4, 2010, Phillips filed an application for
post-conviction relief ("PCR") raising the
following grounds in his application:
(1) Counsel was ineffective for failing to investigate
documentary evidence and witnesses in the case.
(2) Counsel was ineffective for failing to call the
State's key witnesses, Jesse Willis and Alberto Rodriguez
to Direct Examination or Cross Examination.
(Resp't Mem. Supp. Mot. Summ. J. Ex. 4 (App. 604-11), ECF
No. 28-4.) An evidentiary hearing was held on February 3,
2012. (Id. Ex. 4 (App. 617-749), ECF No. 28-4.) On
May 17, 2012, the PCR court denied Phillips' PCR
application. (Id. Ex. 4 (App. 777-88), ECF No.
28-4.) Phillips filed a petition for writ of certiorari with
the South Carolina Supreme Court on May 22, 2012.
(Id. Ex. 10 (Petition for Writ of Cert.), ECF No.
28-10.) On August 6, 2014, the South Carolina Supreme Court
denied the petition for writ of certiorari. (Id. Ex.
13 (Aug. 6, 2014 Order), ECF No. 28-13.)
acting pro se, filed the instant federal petition for writ of
habeas corpus on June 16, 2015,  raising ineffective
assistance of counsel claims. (§ 2254 Petition, ECF No.
1.) On October 23, 2015, Respondent filed a motion for
summary judgment. (Resp't Mot. Summ. J., ECF No. 28.) On
November 20, 2015, Phillips, through counsel,  filed an amended
petition and a memorandum in support of the amended petition
alleging that counsel was ineffective in failing to (1)
understand the law, (2) investigate witnesses, (3) call
certain witnesses at trial, (4) understand the law and
investigate a third party guilt defense, and (5) review
physical evidence with the petitioner prior to trial.
(Phillips § 2254 Am. Pet., generally, ECF No. 33.)
Phillips responded to the motion for summary judgment on
December 18, 2015. On July 11, 2016, Magistrate Judge
McDonald issued a Report and Recommendation recommending
granting Respondent's motion for summary judgment and
denying Phillips' petition. Phillips timely filed
objections on August 12, 2016. This matter is now ripe for
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). "[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
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, " 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 grant [a petitioner'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).