United States District Court, D. South Carolina, Greenville Division
ORDER AND OPINION
Richard Mark Gergel United States District Court Judge.
the Court is the Report and Recommendation ("R &
R") of the Magistrate Judge (Dkt. No. 48) recommending
that the Court grant Respondent's motion for summary
judgment. (Dkt. No. 19.) For the reasons set forth below, the
Court adopts the R & R as the order of the Court to grant
respondent's motion for summary judgment and dismiss the
Alan Bruce Carruthers is a prisoner at the Lee Correctional
Institution in the South Carolina Department of Corrections.
He filed a pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. (Dkt. No. 1.)
Petitioner plead guilty to first degree criminal sexual
conduct ("CSC") with a minor. (Dkt. No. 18-1 at
13.) The court sentenced petitioner to thirty years of
imprisonment with credit for time served and directed that
the sentence run concurrent to petitioner's federal
charges. (Id. at 35-36.) The court also ordered
petitioner to undergo abuse and pedophilia counseling during
incarceration. (Id. at 36.) Petitioner appealed his
conviction, which the South Carolina Court of Appeals
confirmed on June 8, 2010. (Dkt. Nos. 18-2; 19-4.) Petitioner
filed a PCR application on March 7, 2011, which counsel
amended on August 14, 2013. (Dkt. No. 18-1 at 38-44,
133-140.) The amended PCR application sets forth multiple
claims for ineffective assistance of counsel, which were all
denied by court order after an evidentiary hearing. (Dkt. No.
18-1 at 133-140, 141-153.) Appellate counsel filed a notice
of appeal on March 22, 2016 followed by a Johnson v.
State, 364 S.E.2d 201 (1988) petition for writ of
certiorari on October 17, 2016.(Dkt. Nos. 18-6; 18-7.) Petitioner
filed a pro se Johnson petition on December 2, 2016.
(Dkt. No. 18-8.) On March 7, 2018, the South Carolina Supreme
Court denied certiorari and the Lexington County Clerk of
Court filed the remittitur on March 23, 2018. (Dkt. Nos.
Petitioner filed a writ of habeas corpus on July 19, 2018
seeking relief on four grounds. (Dkt. No. 1.) Subsequently,
the Magistrate Judge granted petitioner's motion to amend
the petition. (Dkt. Nos. 25, 31.) Petitioner now seeks relief
on five grounds: (1) prosecutorial misconduct and fraud upon
the court; (2) counsel's misadvise to petitioner
regarding sentencing; (3) plea counsel's failure to
investigate and challenge evidence introduced at the plea
hearing; (4) challenge to the validity of South
Carolina's first degree CSC with a minor statute; and (5)
ineffective assistance of counsel for failing to advise
petitioner that the State's photographs were illegally
obtained and should have been suppressed. (Dkt. No. 37.)
Respondent filed a motion for summary judgment and petitioner
filed a motion in opposition. (Dkt. Nos. 19, 44.) Petitioner
filed objections to the R & R on August 7 and August 21,
2019. (Dkt. Nos. 52, 54.)
Review of R&R
Magistrate Judge makes a recommendation to the Court that has
no presumptive weight and the responsibility to make a final
determination remains with the Court. See, e.g., Mathews
v. Weber, 423 U.S. 261, 270-71 (1976). The Court may
"accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate
judge." 28 U.S.C. § 636(b)(1)(C). Where there are
specific objections to the R & R, the Court "makes a
de novo determination of those portions of the
report or specified proposed findings or recommendations to
which objection is made." Id. In the absence of
objections, the Court reviews the R & R to "only
satisfy itself that there is no clear error on the face of
the record in order to accept the recommendation."
Fed.R.Civ.P. 72 advisory committee's note; see also
Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983)
("In the absence of objection ... we do not believe that
it requires any explanation."). Petitioner filed
objections to the R & R and the Court conducts a de
Motion for Summary Judgment
judgment is appropriate if a party "shows that there is
no genuine dispute as to any material fact" and that the
movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). In other words, summary judgment should
be granted "only when it is clear that there is no
dispute concerning either the facts of the controversy or the
inferences to be drawn from those facts." Pulliam
Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir.
1987). "In determining whether a genuine issue has been
raised, the court must construe all inferences and
ambiguities in favor of the nonmoving party."
HealthSouth Rehab. Hosp. v. Am. Nat'l Red Cross,
101 F.3d 1005, 1008 (4th Cir. 1996). The movant has the
initial burden of demonstrating that there is no genuine
issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Once the movant has made this
threshold demonstration, to survive summary judgment the
respondent must demonstrate that specific, material facts
exist that give rise to a genuine issue. Id. at 324.
Under this standard, "[c]onclusory or speculative
allegations do not suffice, nor does a 'mere scintilla of
evidence'" in support of the non-moving party's
case. Thompson v. Potomac Elec. Power Co., 312 F.3d
645, 649 (4th Cir. 2002) (quoting Phillips v. CSX Tramp.,
Inc., 190 F.3d 285, 287 (4th Cir. 1999)).
Federal Habeas Relief Pursuant to 28 U.S.C. §
prisoner who challenges matters "adjudicated on the
merits in State court" can obtain relief in federal
court if he shows that the state court's decision
"was contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court" or "was based on
an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding." 28
U.S.C. § 2254(d). When reviewing a state court's
application of federal law, "a federal habeas court may
not issue the writ simply because that court concludes in its
independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or
incorrectly. Rather, that application must also be
unreasonable." Williams v. Taylor, 529 U.S.
362, 410 (2000). The state court's application is
unreasonable if it is "objectively unreasonable, not
merely wrong." White v. Woodall, 572 U.S. 415,
419 (2014). Meaning, the state court's ruling must be
"so lacking in justification that there was an error
well understood and comprehended in existing law beyond any
possibility for fairminded disagreement." Harrington
v. Richter, 562 U.S. 86, 103 (2011).
state court's determination is presumed correct and the
petitioner bears the burden of rebutting this presumption by
clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
The state court's decision "must be granted a
deference and latitude that are not in operation" when
the case is considered on direct review. Harrington,
562 U.S. at 101. This is because habeas corpus in federal
court exists only to "guard against extreme malfunctions
in the state criminal justice systems." Id. at
102 (citation and internal quotation marks omitted).
Accordingly, pursuant to 28 U.S.C. § 2254(d), a federal
habeas court must (1) determine what arguments or theories
supported or could have supported the state court's
decision; and then (2) ask whether it is possible that
fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding of a prior
decision of the United States Supreme Court.
Harrington, 562 U.S. at 102. "If this standard
is difficult to meet, that is because it was meant to
the petitioner may pursue federal habeas relief to this
standard, he must first exhaust his state court remedies. 28
U.S.C. § 2254(b)(1)(A). Meaning, the petitioner
"must present his claims to the state's highest
court." Matthews v. Evatt,105 F.3d 907, 911
(4th Cir. 1997) (abrogated on other grounds by United
States v. Barnette,644 F.3d 192 (4th Cir. 2011)). This
requires the petitioner to have "fairly present[ed] to
the state court both the operative facts and the controlling
legal principles associated with each claim."
Longworth v. Ozmint, 311 F.3d 437, 448 (4th Cir.
2004) (internal quotation marks omitted). A federal habeas
court should not review the merits of claims that would be
found to be procedurally defaulted or barred under
independent and adequate state procedural rules. Lawrence
v. Banker,517 F.3d 700, 714 (4th Cir. 2008). For a
procedurally defaulted claim to be properly considered by the
federal habeas court, the petitioner must "demonstrate
cause for the ...