Bixby v. Stirling, Civil Action No. 4:17-cv-954-BHH

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
Writing for the CourtBruce Howe Hendricks United States District Judge
PartiesSteven Vernon Bixby, #6024, Petitioner, v. Bryan P. Stirling, Commissioner, South Carolina Department of Corrections; and Willie D. Davis, Warden, Kirkland Reception and Evaluation Center, Respondents.
Docket NumberCivil Action No. 4:17-cv-954-BHH
Decision Date01 March 2021

Steven Vernon Bixby, #6024, Petitioner,
v.
Bryan P. Stirling, Commissioner, South Carolina Department of Corrections;
and Willie D. Davis, Warden, Kirkland Reception and Evaluation Center, Respondents.

Civil Action No. 4:17-cv-954-BHH

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA FLORENCE DIVISION

March 1, 2021


Amended Opinion and Order1

Petitioner, Steven Vernon Bixby ("Petitioner"), represented by counsel and under a sentence of death, seeks habeas corpus relief pursuant to 28 U.S.C. § 2254. This action is before the Court on Petitioner's petition for writ of habeas corpus ("Petition") (ECF Nos. 44, 72, 72-1, and 80)2 and Respondents' motion for summary judgment and return and memorandum in support thereof (collectively, the "Return") (ECF Nos. 83 and 84). Petitioner filed a traverse and memorandum of law in opposition to Respondents' motion for summary judgment ("Traverse"). (ECF No. 92.) In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), this matter was referred to United States Magistrate Thomas E. Rogers for pre-trial proceedings and a Report and Recommendation ("Report"). On January 11, 2019, Magistrate Judge Rogers issued a Report recommending that Respondents' motion for summary judgment be granted and the Petition be dismissed without an evidentiary hearing. (ECF No. 94.)

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Petitioner filed objections on March 13, 2019 (ECF No. 107), and Respondents replied on April 9, 2019 (ECF No. 116). On May 31, 2019, after obtaining leave of Court, Petitioner filed a sur-reply in support of his objections. (ECF No. 125.) The Report sets forth the relevant factual and procedural background (ECF No. 94 at 2-25), which the Court incorporates herein without recitation.3 For the reasons set forth herein, the Court overrules Petitioner's objections, ACCEPTS the Magistrate Judge's Report (ECF No. 94), GRANTS Respondents' motion for summary judgment (ECF No. 84), and DENIES Petitioner's Petition (ECF Nos. 44, 72, 72-1, and 80) in its entirety.

I. LEGAL STANDARD

A. The Magistrate Judge's Report and Recommendation

The Magistrate Judge makes only a recommendation to the Court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with the court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court is charged with making a de novo determination of those portions of the Report to which specific objection is made, and the Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter with instructions. 28 U.S.C. § 636(b)(1). However, the Court need not conduct a de novo review when a party makes only "general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations." Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of a timely filed, specific objection, the Magistrate Judge's conclusions are reviewed only for clear error.

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See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).

B. Summary Judgment Standard

Summary judgment is appropriate "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). It is well established that 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 Properties, 810 F.2d 1282, 1286 (4th Cir. 1987).

The party moving for summary judgment has the burden of showing the absence of a genuine issue of material fact, and the Court must view the evidence before it and the inferences to be drawn therefrom in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). When a respondent is the moving party and the petitioner has the ultimate burden of proof on an issue, the respondent must identify the parts of the record that demonstrate the petitioner lacks sufficient evidence. The nonmoving party must then go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); see Fed. R. Civ. P. 56(c).

A party "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). Therefore, "[m]ere unsupported speculation . . . is not enough to defeat a summary judgment motion." At Ennis v. National Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995).

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C. Section 2254 Standard

Because Petitioner filed the petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), his claims are governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997). Section 2254 "sets several limits on the power of a federal court to grant an application for a writ of habeas corpus on behalf of a state prisoner." Cullen v. Pinholster, 563 U.S. 170, 181 (2011). For instance, § 2254 authorizes review of only those applications asserting a prisoner is in custody in violation of the Constitution or federal law and only when, except in certain circumstances, the prisoner has exhausted remedies provided by the State. Id.

When a § 2254 petition includes a claim that has been adjudicated on the merits in a State court proceeding, § 2254 provides that the application shall not be granted with respect to that claim, unless the State court's adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that 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). "This is a 'difficult to meet,' and 'highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.'" Pinholster, 563 U.S. at 181 (internal citations omitted) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011); Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)).

The Fourth Circuit Court of Appeals recently explained proper application of these standards as follows:

Under § 2254(d)(1), such a decision is "contrary to" Supreme Court

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precedent "if the state court applied a rule that contradicts the governing law set forth in" Supreme Court cases, or "confronted a set of facts that are materially indistinguishable from a Supreme Court decision and nevertheless arrive[d] at a result different from [that] precedent." Williams v. Taylor, 529 U.S. 362, 405-06, 120 S. Ct. 1495, 146 L.Ed.2d 389 (2000). A decision is an "unreasonable application" of clearly established Supreme Court precedent if the PCR court "correctly identified the governing legal rule but applied it unreasonably to the facts of a particular prisoner's case." Id. at 407-08, 120 S. Ct. 1495. "In order for a federal court to find a state court's application of Supreme Court precedent unreasonable, the state court's decision must have been more than incorrect or erroneous. The state court's application must have been objectively unreasonable." Wiggins, 539 U.S. at 520-21, 123 S. Ct. 2527 (internal citation and quotation marks omitted); see also Harrington v. Richter, 562 U.S. 86, 103, 131 S. Ct. 770, 178 L.Ed.2d 624 (2011) ("[A] state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.").

Alternatively, a state prisoner may be granted relief pursuant to § 2254(d)(2) if the PCR court['s] decision[] was based on a factual determination "sufficiently against the weight of the evidence that it is objectively unreasonable." Winston v. Kelly, 592 F.3d 535, 554 (4th Cir. 2010). As with legal conclusions, "for a state court's factual determination to be unreasonable under § 2254(d)(2), it must be more than merely incorrect or erroneous." Id. (internal citation omitted).

Williams v. Stirling, 914 F.3d 302, 311-12 (4th Cir. 2019), as amended (Feb. 5, 2019) (modifications omitted).

D. Ineffective Assistance of Counsel

The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. The United States Supreme Court has held that this right is violated when counsel retained by, or appointed to, a criminal defendant fails to provide adequate or effective legal assistance. See Strickland v. Washington, 466 U.S. 668, 686 (1984). Strickland established a two-prong test for a claim

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of ineffective assistance of counsel in violation of the Sixth Amendment, under which the criminal defendant must show deficient performance and resulting prejudice. Id. at 687. "The performance prong of Strickland requires a defendant to show 'that counsel's representation fell below an objective standard of reasonableness.'" Lafler v. Cooper, 566 U.S. 156, 163 (2012) (quoting Hill v. Lockhart, 474 U.S. 52, 57 (1985)). "[C]ounsel should be 'strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment,'" and courts should indulge in a "'strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance.'" Burt v. Titlow, 134 S. Ct. 10, 17 (2013) (modifications omitted) (quoting Strickland, 466 U.S. at 689-90). "To establish Strickland prejudice a defendant must 'show that there is a reasonable...

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