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Holland v. Stirling

United States District Court, D. South Carolina, Rock Hill Division

April 24, 2018

Lemond C. Holland, Petitioner,
v.
Bryan Stirling, Commissioner, South Carolina Department of Corrections; Scott Lewis, Warden, Perry Correctional Institution, Respondents.

          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 Paige J. Gossett, made in accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina.[1] Lemond C. Holland (“Holland”) is a state prisoner seeking habeas corpus relief pursuant to 28 U.S.C. § 2254. In her Report and Recommendation, Magistrate Judge Gossett recommends granting the Respondents' motion for summary judgment and denying Holland's petition.

         I. Factual and Procedural Background

         In April 2006, Holland was indicted in South Carolina state court for murder, assault and battery with intent to kill, and possession of a weapon during the commission of a violent crime. (Return & Mem. Attach. 3 (App'x 552-60), ECF No. 10-3.) After a jury trial held June 11-13, 2007, Holland was convicted on all counts and sentenced to 55 years' imprisonment. (Id. Attach. 2 (App'x 377), ECF No. 10-2.) Holland was represented by Robert N. Richardson, Jr., Esquire, and Jeffrey E. Johnson, Esquire (collectively “Trial Counsel”). (Id. Attach. 1 (App'x 1), ECF No. 10-1.)

         On November 17, 2008, Holland appealed his conviction. (Id. Attach. 2 (App'x 397), ECF No. 10-2.) On August 18, 2009, the South Carolina Court of Appeals affirmed the trial court's decision in a published opinion. (Id. Attach. 2 (App'x 453), ECF No. 10-2.) Holland filed a petition for a writ of certiorari with the South Carolina Supreme Court, which was denied. (Return & Mem. Attach. 3 (App'x 530-31), ECF No. 10-3.) On February 10, 2012, the South Carolina Court of Appeals issued a remittitur. (Id. Attach. 2 (App'x 480), ECF No. 10-2.)

         On January 18, 2013, Holland filed an application for post-conviction relief (“PCR”). (Id. Attach. 3 (App'x 539), ECF No. 10-3.) At the evidentiary hearing held on February 3, 2015, Holland raised claims that trial counsel was ineffective for failing to adequately question the forensic pathologist about another witness's testimony, providing improper advice to Holland about testifying in his own defense, and failing to present the assault victim's testimony. (Id. Attach. 3 (App'x 661), ECF No. 10-3.) The PCR court granted relief on Holland's claims that trial counsel failed to adequately question the forensic pathologist and failed to present the assault victim's testimony. (Return & Mem. Attach. 3 (App'x 642-44), ECF No. 10-3.) The respondent moved to alter or amend the PCR court's order. (Id. Attach. 3 (App'x 646-52), ECF No. 10-3.) On August 28, 2015, the PCR court granted respondent's motion and dismissed Holland's PCR application, finding trial counsel was not ineffective on the claims upon which the court had previously granted relief. (Id. Attach. 3 (App'x 665-70), ECF No. 10-3.)

         On May 23, 2016, Holland filed a petition for writ of certiorari with the South Carolina Supreme Court. (Id. Attach. 5 (Pet. for Writ of Cert.), ECF No. 10-5.) On March 2, 2017, the South Carolina Supreme Court transferred the petition to the South Carolina Court of Appeals. (Id. Attach. 8 (Mar. 2, 2017 Order), ECF No. 10-8.) On September 28, 2017, the South Carolina Court of Appeals denied Holland's petition for writ of certiorari. (Return & Mem. Attach. 9 (Sept. 28, 2017 Order), ECF No. 10-9.)

         Holland filed the instant § 2254 petition on December 6, 2017, [2] raising ineffective assistance of counsel claims. (§ 2254 Pet. 12-14, ECF No. 1.) On February 15, 2018, Respondents filed a motion for summary judgment. (Mot. Summ. J., ECF No. 11.) Holland responded in opposition on March 5, 2018. (Resp. Opp'n Mot. Summ. J., ECF No. 16.) On March 12, 2018, Respondents replied. (Reply, ECF No. 17.) Magistrate Judge Gossett issued a Report and Recommendation on March 30, 2018, recommending granting Respondents' motion for summary judgment and denying Holland's petition. (R&R 22, ECF No. 18.) Holland filed timely objections to the Report and Recommendation on April 12, 2018. (Pet'r Objs., ECF No. 19.) Respondents filed timely objections to the Report and Recommendation on April 13, 2018. (Resp't Objs., ECF No. 20.) This matter is 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 ...


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