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Trimmier v. Broad River Correctional Institution

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

January 11, 2018

Antonio Rashad Trimmier, Petitioner,
v.
Warden, Broad River Correctional Institution, Respondent.

          ORDER

          THE HONORABLE BRUCE H. HENDRICKS UNITED STATES DISTRICT JUDGE.

         This 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.

         BACKGROUND

         The 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 crime.

         Petitioner 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, 2012.

         Petitioner 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 misconduct.” (Id.)

         The 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.[1] Judge Verdin took the matter under advisement after the hearing.

         On 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.

         The 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.

         Judge 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.)

         Petitioner 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.

         Petitioner 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.

         STANDARDS OF REVIEW I

         1. The Magistrate Judge's Report

         The 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).

         II. Summary Judgment

         To 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).

         III. Habeas Corpus

         Because 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, ...


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