United States District Court, D. South Carolina
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 Jacquelyn D.
Austin made in accordance with 28 U.S.C. § 636(b)(1) and
Local Civil Rule 73.02 for the District of South
Carolina. Lynel Witherspoon (âWitherspoonâ), a state
prisoner, seeks habeas corpus relief pursuant to 28 U.S.C. Â§
2254. In her Report and Recommendation, Magistrate Judge
Austin recommends granting the Respondent's motion for
summary judgment and denying Witherspoon's petition. For
the reasons set forth below, the court adopts the Report and
Recommendation, grants Respondent's motion for summary
judgment, and denies Witherspoon's petition.
Factual and Procedural Background
is currently incarcerated at Evans Correctional Institution
in the South Carolina Department of Corrections. On February
28, 2013, Witherspoon was indicted in state court for
distribution of cocaine. (Ret. & Mem. Supp. Mot. Summ. J.
Attach. 1 (App. 239-40), ECF No. 10-1.) On July 25, 2013,
Witherspoon was found guilty after a jury trial and sentenced
to seventeen years' imprisonment. (Id. Attach. 1
(App. 167-75), ECF No. 10-1.) On July 29, 2013, Witherspoon
filed a direct appeal and raised claims of trial court error
regarding (1) confusing and misleading jury instructions, (2)
failure to give curative instructions to the jury, (3) the
use of an Allen charge, and (4) denial of
Witherspoon's motion for a directed verdict.
(Id. Attach. 3 (Anders Br.), ECF No.
10-3; Id. Attach. 4 (Pro Se Anders Br.),
ECF No. 10-4.) On October 8, 2014, the South Carolina Court
of Appeals dismissed Witherspoon's appeal. (Id.
Attach. 1 (App. 246-47), ECF No. 10-1.)
December 12, 2014, Witherspoon filed an application for
post-conviction relief (“PCR”) and raised three
grounds for relief: (1) ineffective assistance of trial
counsel, (2) due process violations, and (3) ineffective
assistance of appellate counsel. (Ret. & Mem. Supp. Mot.
Summ. J. Attach. 1 (App. 178-85), ECF No. 10-1.) An
evidentiary hearing was held on February 9, 2016.
(Id. Attach. 1 (App. 194-232), ECF No. 10-1.) On
March 11, 2016, the court denied Witherspoon's PCR
application. (Id. Attach. 1 (App. 233-38), ECF No.
10-1.) Witherspoon appealed and filed a petition for writ of
certiorari with the South Carolina Supreme Court on September
23, 2016, raising the following issues: (1) PCR court error
regarding failure to find trial counsel ineffective for (a)
failing to object to the in-court comparison of Witherspoon
to a still frame from the video of the drug transaction at
issue (“in-court stand up procedure”), (b)
failing to object to hearsay testimony, and (c) failing to
suppress the video tape of the drug transaction; (2) lack of
subject matter jurisdiction; (3) impermissible prosecution;
and (4) trial counsel's failure to object to the
Allen charge. (Id. Attach. 10 (Pet. Writ
Cert. 3), ECF No. 10-10; Id. Attach. 11 (Pro Se
Br.), ECF No. 10-11.) The South Carolina Supreme Court
transferred the petition to the South Carolina Court of
Appeals, and on April 17, 2018, the Court of Appeals denied
the petition. (Id. Attach. 13 (Apr. 17, 2018 Order),
ECF No. 10-13.)
filed the instant § 2254 petition on February 5, 2019,
alleging the following four grounds for relief:
Ground 1: Trial counsel was ineffective when
she failed to make a pre-trial motion to exclude and/or
redact video evidence of the alleged drug transaction.
Ground 2: Trial counsel was ineffective for
failing to exclude or object to hearsay testimony during
Ground 3: Trial counsel was ineffective for
failing to contemporaneously object and/or move for a
mistrial after the court's Allen charge during jury
Ground 4: Trial counsel was ineffective for
failing to object and/or move for mistrial when the court
instructed the Defendant to stand next to an image of the
(§ 2254 Pet., ECF No. 1.) On April 25, 2019, Respondent
filed a motion for summary judgment. (Mot. Summ. J., ECF No.
11.) Witherspoon filed a response in opposition on May 9,
2019. (Resp. Opp'n Mot. Summ. J., ECF No. 12.) On July
11, 2019, Magistrate Judge Austin issued the Report and
Recommendation. (R&R, ECF No. 14.) Magistrate Judge
Austin recommends granting Respondent's motion for
summary judgment and denying Witherspoon's petition
because (1) portions of grounds three and four are
procedurally defaulted, and (2) Witherspoon has not
demonstrated that the PCR court's application of
Strickland v. Washington, 466 U.S. 668 (1984), was
unreasonable as to the remaining grounds for relief.
(Id., ECF No. 14.) Witherspoon filed objections to
the Report and Recommendation on July 25, 2019. (Objs., ECF
No. 15.) This matter is now ripe for consideration.
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