Nesbitt v. South Carolina, State of

Filing 44

ORDER RULING ON 35 REPORT AND RECOMMENDATION. Defendants' Motion for Summary Judgment 27 is GRANTED and the habeas petition is dismissed. Signed by Honorable Richard M. Gergel on 9/9/2014. (gmil)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

Brian Keith Nesbitt,

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Petitioner

Civil Action No. 0: 13-cv-2602-RMG

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v.
Tyger River Correctional
Institution,
Respondent

ORDER

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This matter is before the Court on Respondent's Motion for Summary Judgment. (Dkt.
No. 27). As explained herein, the Court adopts the Magistrate's Report and Recommendation
("R&R") (Dkt. No. 35) and GRANTS Respondent's motion.

I. Background
Brian Keith Nesbitt ("Petitioner") is currently a prisoner at the Tyger River Correctional
Institute. Proceeding pro se and in forma pauperis, Petitioner filed this petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(b) and Local Civil
Rule 73.02(B)(2) DSC, this matter was automatically referred to a Magistrate Judge for pretrial
proceedings. Respondent filed a Motion for Summary Judgment (Dkt. No. 27) and a Return and
Memorandum to the Petition (Dkt. No. 28), and the Magistrate Judge issued the present R&R,
recommending that the motion be granted. Petitioner filed timely objections to the R&R (Dkt.
No. 37) and supplemental objections (Dkt. No. 43).

Petitioner was indicted in May 2005 for assault and battery with intent to kill, assault
with intent to kill, and two counts of resisting arrest. He entered a plea of nolo contendere to
lesser charges, and was sentenced to two consecutive ten year sentences and two concurrent one
year sentences. The R&R provides a comprehensive and concise procedural review of
Petitioner's appeal, application for postconviction relief, and petition for a writ of certiorari from
the denial of postconviction relief ("PCR"). R&R at 1-3. After the South Carolina Court of
Appeals denied Nesbitt's petition for certiorari, he filed this Petition for a writ of habeas corpus,
submitting a long list of complaints as to his sentencing, appeals, ineffective assistance of
counsel, and treatment in prison. For the reasons to follow, the Court adopts the R&R in whole.

II. Discussion
A. Summary Judgment Standard of Review
Summary 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. Hasp. v. Am. Nat 'I Red Cross, 101 F.3d
1005, 1008 (4th Cir. 1996). The party seeking summary judgment shoulders the initial burden of
demonstrating to the court that there is no genuine issue of material fact.

Celotex Corp. v.

Catrett, 477 U.S. 317,323 (1986).
Once the moving party has made this threshold demonstration, the non-moving party, to
survive the motion for summary judgment, may not rest on the allegations averred in his

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pleadings. Id. at 324. Rather, the non-moving party must demonstrate that specific, material
facts exist that give rise to a genuine issue. Id. 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. CSXTransp., Inc., 190 F.3d 285, 287 (4th Cir. 1999)).
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility for making a final determination remains with
this Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This Court is charged with making
a de novo determination of those portions of the R&R to which specific objection is made.

B. Federal Habeas Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")'s standard for
review of federal habeas corpus claims is a difficult one for a petitioning prisoner to meet.
Petitioner's claims are governed by 28 U.S.C. § 2254(d), which provides that his petition cannot
be granted unless the claims "(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). "[AJ 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. 362,411 (2000). Importantly, "a determination of
a factual issue made by a State court shall be presumed to be correct," and Petitioner has «the
burden of rebutting the presumption of correctness by clear and convincing evidence." 28

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U.S.C. § 2254(e)(1). Section 2254(d) codifies the view that habeas corpus is a "guard against
extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error
correction through appeal." Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770, 786 (2011)
(citation omitted).

C. Grounds for Habeas Analyzed in the R&R
After review of the record, the R&R, and Petitioner's objections, the Court finds the
Magistrate Judge applied sound legal principles to the facts of this case and therefore agrees with
and wholly adopts the R&R as the order of the Court. The majority of Petitioner's claims were
procedurally defaulted, as they were not raised and preserved in his state proceedings. R&R at
10-14 (discussing Petitioner's arguments on Fourth Amendment violations, manipulation of
documents, Brady violations, malicious prosecution, denial of due process and equal protection,
conspiracy, and alteration of his sentencing). Others are not cognizable in this court because
they do not address federal law. ld at 14-15 (discussing Petitioner's arguments regarding
ineffective assistance of his PCR counsel, deficiencies in the indictment process, and errors by
the sentencing court).
Finally, Petitioner alleges that he had ineffective assistance of counsel at his criminal
trial. As the R&R explains, Strickland v. Washington, 466 U.S. 668 (1984) requires that a
petitioner show on a state appeal that 1) his counsel was deficient in his representation and that
2) he was prejudiced as a result. When a federal habeas court reviews a state court's decision
denying an ineffective assistance of counsel claim, the standard is even higher, and "[t]he
question is not whether counsel's actions were reasonable. The question is whether there is any
reasonable argument that counsel satisfied Strickland's deferential standard." Harrington v.

Richter, 562 U.S. 86, 131 S. Ct. 770, 788 (2011). Here, the PCR court appropriately applied the

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Strickland test, reviewing testimony from Petitioner's former attorney regarding the
investigation, research, preparation, and advice he provided for Petitioner. R&R at 18-20.
Petitioner has not met the strict requirements for a finding of ineffective counsel by this Court.

D. Petitioner's Objections
Petitioner filed two sets of objections (Dkt. No. 37 and Dkt. No. 43). Both filings
reiterate arguments that the Magistrate Judge addressed sufficiently in her R&R on Petitioner's
Motion for Preliminary Injunction (Dkt. No. 18) and the R&R presently before the Court. He
argues that the state court's decision in his case was "contrary to or involved an unreasonable
application of clearly established federal law." (Dkt. No. 43 at 2). However, he fails to provide
specific evidence that such an unreasonable application took place. (Id. at 2-8). Conclusory
statements of applicable legal standards are not sufficient to defeat a motion for summary
judgment. See Thompson v. Potomac Elec. Power Co., 312 F.3d at 649. Petitioner's ineffective
assistance of counsel arguments, as the Magistrate explained, have been countered by the
testimony of his former attorney, and do not meet Strickland's deferential standard.
Petitioner's Fourth Amendment arguments (Dkt. No. 43 at 10) are not relevant to the
charges he was sentenced for, which were assault, battery, and resisting arrest charges.
Finally, Petitioner reiterates a number of arguments relating to his treatment in prison,
including inappropriate use of solitary confinement and insufficient medical treatment. (ld. at 9­
10, 17; Dkt. No. 37 at 1-3)). As this Court ruled in adopting the R&R on the Motion for
Preliminary Injunction (Dkt. Nos. 18,24), a civil rights claim alleging constitutional violations
must be addressed via a Section 1983 suit, not through a habeas petition. However, a civil rights
action under 42 U.S.C. § 1983 is normally the proper vehicle to challenge the conditions of

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prison life. See Preiser v. Rodriguez, 411 U.S. 475,499; Ajaj v. Smith, 108 F. App'x 743, 744
(4th Cir. 2004).

III. Conclusion
A review of the record indicates that the Magistrate Judge's report accurately states the
case and the applicable law. For the reasons articulated by the Magistrate Judge, Defendants'
Motion for Summary Judgment (Dkt. No. 27) is GRANTED and the habeas petition is
dismissed.

Certificate of Appealability
The governing law provides that:
(c)(2) A certificate of appealability may issue ... only if the applicant has made a
substantial showing of the denial of a constitutional right.
(c)(3) The certificate of appealability ... shall indicate which specific issue or
issues satisfy the showing required by paragraph (2).
28 U.S.C. § 2253(c). A prisoner satisfies the standard by demonstrating that reasonable jurists
would find this Court's assessment of his constitutional claims debatable or wrong and that any
dispositive procedural ruling by the district court is likewise debatable. See Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee,
252 F.3d 676, 683 (4th Cir. 2001). In this case, the legal standard for the issuance of a certificate
of appealability has not been met. Therefore, a certificate of appealability is DENIED.

IT IS SO ORDERED.

Richard M. Gergel
United States District Judge
September 'i 2014
Charleston, South Carolina

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