United States District Court, D. South Carolina, Florence Division
HONORABLE BRUCE H. HENDRICKS UNITED STATES DISTRICT JUDGE.
matter is before the Court upon Petitioner Antonio Rashad
Trimmier's (“Trimmier”) petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. In
accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil
Rule 73.02(B)(2)(d) (D.S.C.), the matter was referred to a
United States Magistrate Judge for initial review. On August
31, 2017, Magistrate Judge Thomas E. Rogers III filed a
Report and Recommendation (“Report”), outlining
the issues and recommending that the Court grant
Respondent's amended motion for summary judgment.
Petitioner filed objections to the Report, and the matter is
ripe for review. For the reasons set forth herein, the Court
adopts the Magistrate Judge's Report and grants
Respondent's amended motion for summary judgment.
Greenville County Grand Jury indicted Petitioner in September
of 2008 for armed robbery and possession of a weapon during
the commission of a violent crime. Attorney Amanda Lackland
represented Petitioner at a jury trial before the Honorable
John C. Few on October 5-6, 2009. The jury convicted
Petitioner of both charges, and Judge Few sentenced him to
concurrent terms of 22 years for armed robbery and five years
for possession of a weapon during the commission of a violent
filed a direct appeal and was represented by assistant
appellate defender M. Celia Robinson. The final
Anders brief on appeal raised the following issue:
“The trial judge erred reversibly in denying the
defense motion to sequester the witnesses in a case where the
State relied exclusively on the testimony of three
cooperating witnesses so[ ] that the refusal to sequester
allowed the prosecuting witnesses to conform their
testimony.” (ECF No. 11-1 at 195.) Petitioner filed a
pro se brief, which the South Carolina Court of Appeals
received on February 4, 2011. The South Carolina Court of
Appeals dismissed the appeal and granted counsel's
petition to be relieved on February 8, 2012. The remittitur
was sent to the Greenville County Clerk of Court on March 30,
filed an application for post-conviction relief
(“PCR”) on March 7, 2013, arguing that he was
being held in custody unlawfully due to ineffective
assistance of counsel for the following reasons: “(a)
Counsel fail[ed] to investigate/violation of Confrontation
Clause; (b) Counsel fail[ed] to produce other evidence and
documents before tr[ia]l; (c) Counsel fail[ed] to explain the
importance of tr[ia]l rights before going to tr[ia]l.”
(ECF No. 11-1 at 216.) In addition, Petitioner alleged:
“Improper comments from prosecutor/prosecutor
state served its return on July 12, 2013, and the Honorable
Letitia H. Verdin held an evidentiary hearing on October 22,
2014. Petitioner appeared and was represented by Richard H.
Warder. Petitioner testified, and he presented the testimony
of his mother, Tasha Trimmier, and his trial counsel, Ms.
Wicker. Judge Verdin took the matter under
advisement after the hearing.
November 12, 2014, before Judge Verdin issued a ruling,
Petitioner, through counsel, filed a “motion to amend
the record and include exhibits which supports
applicant's testimony, ” in which he sought to
amend the record to include six exhibits that he did not
introduce at the hearing. (Id. at 272-73.) Judge
Verdin granted the motion and allowed the state to file a
return, which was submitted on November 19, 2014.
state opposed Petitioner's motion and argued that because
the record was closed, it could not challenge the
authenticity of the additional exhibits and cross-examine
witnesses about them. The state also argued that the motion
was improper because counsel merely submitted the documents
at Petitioner's request.
Verdin signed an order of dismissal on February 21, 2015,
denying relief and dismissing the application with prejudice.
Judge Verdin addressed Petitioner's claims that (1) trial
counsel's inadequate investigation resulted in her
failing to discover evidence, specifically, geographic
monitoring information from the Home Incarceration Program
(“HIP”) that would support an alibi; (2) trial
counsel was ineffective in failing to impeach prosecution
witnesses on cross-examination with their gang membership and
pending charges; (3) counsel failed to properly prepare
Petitioner for trial; and (4) prosecutorial misconduct.
(Id. at 321-28.)
appealed the denial of his PCR application and was
represented by assistant appellate defender Susan B. Hackett.
On October 27, 2015, Petitioner filed a petition for writ of
certiorari presenting the following issues:
I. Did trial counsel's failure to investigate, marshal,
and present evidence of Petitioner's alibi-the fact that
he was on house arrest at the time of the robbery-result in
ineffective assistance in violation of the Sixth and
Fourteenth Amendments to the United States Constitution?
II. Did trial counsel's failure to investigate, marshal,
and present evidence to impeach the testifying co-defendants
result in ineffective assistance in violation of the Sixth
and Fourteenth Amendments to the United States Constitution?
(ECF No. 11-9 at 3.) By order filed January 13, 2017, the
South Carolina Supreme Court denied the petition for writ of
certiorari, and the remittitur was issued on January 31,
2017, and filed by the Greenville County Clerk of Court on
February 2, 2017.
filed the instant § 2254 petition on March 8, 2017,
raising the following claims: (1) “Petitioner received
ineffective assistance of counsel when his trial counsel
failed to present evidence of his alibi”; and (2)
“Petitioner received ineffective assistance of counsel
when his trial counsel failed to present evidence to impeach
the testifying co-defendants.” (ECF No. 1 at 7, 10.)
Respondent filed a response to the petition and moved for
summary judgment. On August 31, 2017, the Magistrate Judge
issued his report recommending that the Court grant
Respondent's motion for summary judgment, and Petitioner
filed timely objections to the Magistrate Judge's Report.
OF REVIEW I
The Magistrate Judge's Report
Magistrate Judge makes only a recommendation to the Court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
Court. See Mathews v. Weber, 423 U.S. 261 (1976).
The Court is charged with making a de novo determination of
any portion of the Report to which a specific objection is
made. The Court may accept, reject, or modify, in whole or in
part, the recommendation made by the Magistrate Judge or
recommit the matter to the Magistrate Judge with
instructions. See 28 U.S.C. § 636(b).
grant a motion for summary judgment, this Court must find
that “there is no genuine issue as to any material
fact.” Fed.R.Civ.P. 56(c). The Court is not to weigh
the evidence, but rather to determine if there is a genuine
issue of fact. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986). If no material factual disputes remain,
then summary judgment should be granted against a party who
fails to make a showing sufficient to establish the existence
of an element essential to that party's case, and on
which the party bears the burden of proof. Celotex Corp.
v. Catrett, 477 U.S. 317 (1986). All evidence should be
viewed in the light most favorable to the non-moving party.
See Perini Corp. v. Perini Constr., Inc., 915 F.2d
121, 123-24 (4th Cir. 1990).
Petitioner filed his petition after the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), review of his claims is governed by 28
U.S.C. § 2254(d), as amended. Lindh v. Murphy,
521 U.S. 320 (1997); Breard v. Pruett, 134 F.3d 615
(4th Cir. 1998). Under the AEDPA, ...