United States District Court, D. South Carolina, Rock Hill Division
Lemond C. Holland, Petitioner,
Bryan Stirling, Commissioner, South Carolina Department of Corrections; Scott Lewis, Warden, Perry Correctional Institution, Respondents.
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 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. 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
Factual and Procedural Background
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.)
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.
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.)
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.)
filed the instant § 2254 petition on December 6, 2017,
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
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 citation omitted).
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 ...