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Phillips v. Lewis

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

August 26, 2016

Jeremy R. Phillips, #325588, Petitioner,
v.
Warden Scott Lewis, [1] Respondent.

          OPINION & ORDER

          HENRY M. HERLONG, JR. Senior United States District Judge.

         This 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.[2] 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 Phillips' petition.

         I. Factual and Procedural Background

         Phillips 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.)

         Phillips 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.)

         Phillips, acting pro se, filed the instant federal petition for writ of habeas corpus on June 16, 2015, [3] 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, [4] 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 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). "[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 citation omitted).

         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, " 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).

         C. ...


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