Witherspoon v. Stonebreaker

          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 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.^[1] Lynel Witherspoon (“Witherspoon”), a state prisoner, seeks habeas corpus relief pursuant to 28 U.S.C. § 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.

         I. Factual and Procedural Background

         Witherspoon 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^[2] charge, and (4) denial of Witherspoon's motion for a directed verdict. (Id. Attach. 3 (Anders^[3] 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.)

         On 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.)

         Witherspoon 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 trial.

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 deliberations.

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 alleged perpetrator.

(§ 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.

         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 ...