Report and Recommendation

THOMAS E. ROGERS, III, Magistrate Judge.

Marcus Antwon Greene (Petitioner), appearing pro se, filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 22541 on May 19, 2015. (Doc. #1). Respondent filed a motion for summary judgment on August 17, 2015, along with a return and memorandum. (Docs. #14 and #15). The undersigned issued an order filed August 17, 2015, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the motion for summary judgment procedure and the possible consequences if he failed to respond adequately. (Doc. #17). Petitioner filed a response on August 28, 2015. (Doc. #19).

PROCEDURAL HISTORY

The procedural history as set forth by the Respondent has not been seriously disputed by the Petitioner in his response. Therefore, the undersigned will set out the undisputed procedural history, in part, as set forth by the Respondent.

Petitioner is currently incarcerated in Evans Correctional Institution pursuant to an order of commitment from the Clerk of Court of Kershaw County. Petitioner was indicted during the October 2011 term of the Kershaw County Grand Jury for Armed Robbery (2011-GS-28-0749) and Burglary in the First Degree (2011-GS-28-0753). Thereafter, Petitioner waived presentment to the Kershaw County Grand Jury for: two counts of Failure to Stop on Blue Light-First Offense (2012-GS-28-0270, -0274), Resisting Arrest (2012-GS-28-0271), Possession of Schedule I-V Drug—First Offense (2012-GS-28-0272), and Possession/Attempt to Possess Crack Cocaine-Second Offense (2012-GS-28-0273). Charlie J. Johnson, Jr., Esquire, represented Petitioner. On February 27, 2012, Petitioner appeared before the Honorable J. Ernest Kinard, Jr., where he pleaded guilty to Burglary in the Second Degree (Non-Violent), Resisting Arrest, Possession of Schedule I-V Drug-First Offense, Possession/Attempt to Possess Crack Cocaine-Second Offense, two counts of Failure to Stop for a Blue Light, and Strong Armed Robbery. Judge Kinard sentenced Petitioner to an aggregate sentence of twenty years imprisonment pursuant to negotiations between Petitioner and the State. No direct appeal was taken.

PCR

Petitioner filed an application for post-conviction relief (PCR) on November 6, 2012, raising the following claims:

(App. 29).

Respondent filed its Return on June 21, 2013, requesting an evidentiary hearing be held. Petitioner amended his application on November 19, 2013. In his amended application filed by his counsel on the eve of the evidentiary hearing, Petitioner alleged as follows:

App.p. 38, 40.

An evidentiary hearing was convened November 20, 2013, at the Richland County Courthouse before the Honorable Robert E. Hood, Circuit Court Judge. App.p. 45-175. Petitioner was present at the hearing and was represented by Tara D. Shurling. At the evidentiary hearing, Petitioner proceeded forward on the nine allegations as set forth in his amended application and testified on his own behalf. Respondent presented testimony from plea counsel Charlie J. Johnson, Jr., Esquire (hereafter "Counsel"), as well as former Assistant Solicitor Ron Moak and prosecuting Assistant Solicitor Brett Perry, Esquire. Respondent was represented by Assistant Attorney General Megan E. Harrigan of the South Carolina Attorney General's Office. Judge Hood entered his order of dismissal dated March 6, 2014. App.p. 183-199.

PCR APPEAL

Petitioner filed a notice of appeal. He was represented by Carmen V. Ganjehsani, Appellate Defender of the South Carolina Commission on Indigent defense, Division of Appellate Defense. On November 21, 2014, counsel filed a Johnson Petition for Writ of Certiorari and petition to be relieved as counsel pursuant to Johnson v. State, 294 S.C. 310, 364 S.E.2d 201 (1988) asserting the following argument:

Johnson Petition for Writ of Certiorari. Along with the Johnson petition, Petitioner submitted a pro se submission on December 17, 2014, raising eight issues. (See doc. #15-2).

In an order filed March 4, 2015, the Supreme Court of South Carolina denied the petition and granted appellant counsel's petition to be relieved. The court issued a remittitur on March 20, 2015.

HABEAS ALLEGATIONS

Petitioner raised the following allegations in his pro se petition, quoted verbatim:

(Habeas Petition) (errors in original).

STANDARD FOR SUMMARY JUDGMENT

The federal court is charged with liberally construing the complaints filed by pro se litigants, to allow them to fully develop potentially meritorious cases. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). The court's function, however, is not to decide issues of fact, but to decide whether there is an issue of fact to be tried. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, Weller v. Dep't of Social Servs., 901 F.2d 387 (4th Cir. 1990), nor can the court assume the existence of a genuine issue of material fact where none exists. If none can be shown, the motion should be granted. Fed. R. Civ. P. 56(c).

The moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Celotex, 477 U.S. 317. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet "the substantive evidentiary standard of proof that would apply at a trial on the merits." Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).

To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324 (Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves). Rather, the party must present evidence supporting his or her position through "depositions, answers to interrogatories, and admissions on file, together with . . . affidavits, if any." Id. at 322; see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.

STANDARD OF REVIEW

In addition to the standard that the court must employ in considering motions for summary judgment, the court must also consider the petition under the requirements set forth in 28 U.S.C. § 2254. Under § 2254(d),

Thus, a writ may be granted if a state court "identifies the correct principle from [the Supreme] Court's decisions but unreasonably applies that principle of law" to the facts of the case. Humphries v. Ozmint, 397 F.3d 206, 216 (4th Cir. 2005) (citing Williams v. Taylor, 529 U.S. 362, 413 (2000)). However, "an `unreasonable application of federal law is different from an incorrect application of federal law,' because an incorrect application of federal law is not, in all instances, objectively unreasonable." Id. "Thus, to grant [a] habeas petition, [the court] must conclude that the state court's adjudication of his claims was not only incorrect, but that it was objectively unreasonable." McHone v. Polk, 392 F.3d 691, 719 (4th Cir. 2004). Further, factual findings "made by a State court shall be presumed to be correct," and a Petitioner has "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

ANALYSIS

Ground One

In Ground One, Petitioner alleges ineffective assistance of counsel. Petitioner asserts nine arguments under Ground One. The law with regard to ineffective assistance of counsel will be set out below with the allegations subsequently discussed.

The Sixth Amendment to the United States Constitution guarantees a defendant the right to effective assistance of counsel in a criminal prosecution. McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). In the case of Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court set forth two factors that must be considered in evaluating claims for ineffective assistance of counsel. A petitioner must first show that his counsel committed error. If an error can be shown, the court must consider whether the commission of an error resulted in prejudice to the defendant.

To meet the first requirement, "[t]he defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland, at 688. "The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Turner v. Bass, 753 F.2d 342, 348 (4th Cir. 1985) (quoting Strickland, reversed on other grounds, 476 U.S. 28 (1986)). The Court further held at page 695 that:

Id.; Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000)(confirming the Strickland analysis). In meeting the second prong of the inquiry, a complaining defendant must show that he was prejudiced before being entitled to reversal. Strickland requires that:

Strickland, at 694.

In the context of a guilty plea, ineffective assistance of counsel claims may be asserted in limited circumstances. In order to prevail on a claim of ineffective assistance of counsel pertaining to a guilty plea, a petitioner must show that his lawyer's performance was incompetent and "that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

A plea of guilty is considered by the court to be a solemn judicial admission that the charges against the defendant are true. The defendant may not later argue that his plea was invalid except in extremely limited circumstances, Blackledge v. Allison, 431 U.S. 63 (1977) (explaining that in a very limited number of cases the court will allow a defendant's challenge to his plea on the basis that the plea was "the product of such factors as misunderstanding, duress, or misrepresentation by others," though the allegations must be concrete and specific). "The accuracy and truth of an accused's statements at a Rule 11 proceeding in which his guilty plea is accepted are `conclusively' established by that proceeding unless and until he makes some reasonable allegation why this should not be so." Crawford v. United States, 519 F.2d 347, 350 (4th Cir. 1975).2

Grounds One (1) and (2)

In Ground One(1), Petitioner argues counsel was ineffective in failing to provide him the opportunity to review the discovery materials in his case before requiring him to make a decision about waiving his rights to a jury trial. In Ground One(2), Petitioner argues his plea was not voluntarily and intelligently entered as it was the product of ineffective assistance of counsel prior to and during the plea proceeding. Specifically, Petitioner argues counsel was ineffective in failing to discuss the inconsistencies in the victim's statement with him prior to his guilty plea. Respondent asserts that the State PCR court reasonably applied the mandates of the United States Supreme Court in denying relief on the claim that his counsel was ineffective concerning the opportunity to review the discovery material prior to pleading and waiving a jury trial.

This issue was raised at PCR and in the PCR appeal. The PCR judge held the following with regards to this issue:

(Order of dismissal, Tr. 194-195).

The PCR court's rejection of Petitioner's argument that his plea was not entered knowingly and voluntarily was not "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." § 2254(d)(1), (2); Williams, supra. Petitioner argues that he was told his co-defendant Jones had made a statement against him coercing him to plead guilty so that the plea was not voluntary. At the PCR hearing, both trial counsel and the prosecutor testified that no references were made by them to the Petitioner that Jones had given a statement against him that would be used if he went to trial. Counsel testified that he relayed to Petitioner that co-defendant's attorney informed him that " . . . the co-defendant client was going to testify against him and would be giving a statement against him" and if he wanted to get out of jail, he needed to cooperate with law enforcement. (Tr. 120-121). The PCR court found their testimony credible while finding Petitioner's testimony not credible with regard to this issue. The PCR court's factual determinations regarding credibility are entitled to deference in this action. Cagle v. Branker, 520 F.3d 320, 324 (4th Cir.2008), (citing 28 U.S.C. § 2254(e)(1) (for a federal habeas court to overturn a state court's credibility judgments, the state court's error must be stark and clear)); see also Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 74 L.Ed.2d 646, (1983) ("28 U.S.C. § 2254(d) gives federal habeas courts no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them"). Additionally, a presumption of correctness attaches to state court factual findings. 28 U.S.C. §2244(e)(1). Evans v. Smith, 220 F.3d 306 (4th Cir. 2000). The state PCR court's findings of fact are not only entitled to the presumption of correctness, 28 U.S.C. § 2254(e)(1), but also are supported by the record. Accordingly, it is recommended that Respondent's motion for summary judgment be granted with regard to Ground One (1).

Ground One (3)

In Ground One (3), Petitioner asserts that counsel was ineffective for advising Petitioner to enter pleas of guilty to charges on which he did not represent Petitioner, and had not investigated or received discovery. Respondent argues that the PCR court was correct in denying Petitioner's ineffective assistance claim on this basis.

This issue was raised and ruled upon by the PCR court and raised in the PCR appeal. In the order of dismissal, the PCR court found as follows:

(Order of Dismissal, Tr. 195-196).

The PCR court's rejection of the ineffective assistance of counsel ground for relief was not "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." § 2254(d)(1), (2); Williams, supra. The PCR court found that Petitioner failed to meet the first and second prongs of Strickland. At the PCR hearing, Counsel testified that Petitioner had admitted the additional charges to counsel which occurred after the home invasion charges. Counsel testified that he used these charges to negotiate the home invasion charges and that the nonviolent charges had no impact on the length of sentencing. In fact, Petitioner received concurrent sentences and did not have those facing him at a later time. The PCR court found Petitioner's testimony not credible while finding plea counsel's testimony credible. Furthermore, the PCR court found Petitioner failed to show resulting prejudice. The PCR court's factual determinations regarding credibility are entitled to deference in this action. Cagle v. Branker, supra, (citing 28 U.S.C. § 2254(e)(1) (for a federal habeas court to overturn a state court's credibility judgments, the state court's error must be stark and clear)); see also Marshall v. Lonberger, supra, ("28 U.S.C. § 2254(d) gives federal habeas courts no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them"). Additionally, a presumption of correctness attaches to state court factual findings. 28 U.S.C. §2244(e)(1). Evans v. Smith, supra. The state PCR court's findings of fact are not only entitled to the presumption of correctness, 28 U.S.C. § 2254(e)(1), but also are supported by the record. Thus, it is recommended that the Respondent's motion for summary judgment be granted as to Ground One(3).

Ground One(4)

In Ground One(4), Petitioner argues that his plea was not voluntarily and intelligently entered as it was coerced by misrepresentations made by the State concerning evidence that would be presented against him if he went to trial.

This issue was raised at PCR as alleged coercion by Counsel and the State to get Applicant to plead guilty. The PCR court held as follows:

(Order of Dismissal, tr. 196).

The PCR court's rejection of the ineffective assistance of counsel ground for relief was not "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." § 2254(d)(1), (2); Williams, supra. The PCR court found that Petitioner failed to meet the first and second prongs of Strickland. As set out under Grounds One(1) and (2), Petitioner's counsel and solicitor testified at the PCR hearing that they never represented to Petitioner that the co-defendant, Jones, already had given a written statement. Counsel advised Petitioner that Jones' counsel informed him of Jones' intentions to testify or give a statement against Petitioner, and that Petitioner should cooperate before Jones gave his statement to law enforcement regarding the home invasion and his actual involvement. (Tr. 120-121). Counsel testified that he advised Petitioner to cooperate in hopes of getting favorable treatment for assisting the State against the co-defendant. (Id.). The PCR court found Petitioner's testimony not credible while finding plea counsel's testimony credible. The PCR court's factual determinations regarding credibility are entitled to deference in this action. Cagle v. Branker, supra (citing 28 U.S.C. § 2254(e)(1) (for a federal habeas court to overturn a state court's credibility judgments, the state court's error must be stark and clear)); see also Marshall v. Lonberger, supra, ("28 U.S.C. § 2254(d) gives federal habeas courts no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them"). Additionally, a presumption of correctness attaches to state court factual findings. 28 U.S.C. §2244(e)(1). Evans v. Smith, supra. The state PCR court's findings of fact are not only entitled to the presumption of correctness, 28 U.S.C. § 2254(e)(1), but also are supported by the record. Thus, it is recommended that the Respondent's motion for summary judgment be granted as to Ground One(4).

Ground One(5)

In Ground One(5), Petitioner argues plea counsel was ineffective for advising him to plead guilty without discussing and disclosing the inconsistencies present in the victim's two statements with the Petitioner and without advising him how those inconsistencies might be used to his advantage at a trial by jury. Respondent argues that the PCR court's decision was correct. Respondent asserts that even though the second statement consisted of more detail and slight inconsistencies such as whether the perpetrator was brown skinned or dark skinned man and whether the man snatched her out of the shower as opposed to coming out of the shower, these inconsistencies would not have impacted greatly on an ability to impeach the victim concerning Petitioner's role where Petitioner admitted to counsel that he was the one who had entered the house but denied he was the one that fondled the victim.

This issue was raised at PCR and the court ruled as follows:

(Order of Dismissal, tr. 196-197).

The PCR court's rejection of the ineffective assistance of counsel ground for relief was not "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." § 2254(d)(1), (2); Williams, supra. The PCR court found that Petitioner failed to meet the first and second prongs of Strickland. After reviewing the two statements and hearing the testimony, the PCR court found that while the second statement included more detail, there were no striking inconsistencies that have any significant impact on Petitioner's case. A presumption of correctness attaches to state court factual findings. 28 U.S.C. § 2244(e)(1). Evans v. Smith, supra. Petitioner fails to meet his burden to rebut the factual findings of the PCR court. Thus, it is recommended that the Respondent's motion for summary judgment be granted as to Ground One(5).

Ground One(6)

In Ground One(6), Petitioner argues that plea counsel was ineffective for failing to advise him of problems with the victim's pre-trial participation in a photo-lineup, and for failing to discuss with him how that evidence might be used in his defense at a trial. Specifically, Petitioner argued that he was not told that the victim picked out two individuals from the photo lineup.

This issue was raised and ruled upon by the PCR court as follows:

(Order of Dismissal, tr. 197).

The PCR court's rejection of the ineffective assistance of counsel ground for relief was not "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." § 2254(d)(1), (2); Williams, supra. The PCR court found that Petitioner failed to meet the first and second prongs of Strickland. Counsel and the solicitor testified that the victim asserted that there were two individuals in the home invasion, and she picked out Petitioner and one other person as the second individual, the co-defendant, in the photo lineup. The PCR court found Petitioner's testimony not credible while finding plea counsel's and the solicitor's testimony credible. The PCR court's factual determinations regarding credibility are entitled to deference in this action. Cagle v. Branker, supra (citing 28 U.S.C. § 2254(e)(1) (for a federal habeas court to overturn a state court's credibility judgments, the state court's error must be stark and clear)); see also Marshall v. Lonberger, supra, ("28 U.S.C. § 2254(d) gives federal habeas courts no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them"). Additionally, a presumption of correctness attaches to state court factual findings. 28 U.S.C. §2244(e)(1). Evans v. Smith, supra. The state PCR court's findings of fact are not only entitled to the presumption of correctness, 28 U.S.C. § 2254(e)(1), but also are supported by the record. Thus, it is recommended that the Respondent's motion for summary judgment be granted as to Ground One(6).

Ground One(7)

In Ground One(7), Petitioner asserts ineffective assistance of counsel for failing to obtain a preliminary hearing.

This issue was raised at PCR and ruled upon by the court as follows:

(Order of Dismissal, tr. 197-198).

The PCR court's rejection of the ineffective assistance of counsel ground for relief was not "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." § 2254(d)(1), (2); Williams, supra. The PCR court found that Petitioner failed to meet the first and second prongs of Strickland. The PCR court found Petitioner's testimony not credible while finding plea counsel's testimony credible. The PCR court's factual determinations regarding credibility are entitled to deference in this action. Cagle v. Branker, supra (citing 28 U.S.C. § 2254(e)(1) (for a federal habeas court to overturn a state court's credibility judgments, the state court's error must be stark and clear)); see also Marshall v. Lonberger, supra, ("28 U.S.C. § 2254(d) gives federal habeas courts no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them"). Additionally, a presumption of correctness attaches to state court factual findings. 28 U.S.C. §2244(e)(1). Evans v. Smith, supra. The state PCR court's findings of fact are not only entitled to the presumption of correctness, 28 U.S.C. § 2254(e)(1), but also are supported by the record. Thus, it is recommended that the Respondent's motion for summary judgment be granted as to Ground One(7).

Ground One(8)

In Ground One(8), Petitioner argues ineffective assistance of counsel for advising him to plead guilty to drug charges without first obtaining discovery concerning the chemical analysis of the evidence alleged to be controlled substances. Respondent asserts that the PCR court's ruling was not in error.

This issue was raised and ruled upon at PCR as follows:

(Order of Dismissal, tr. 198).

The PCR court's rejection of the ineffective assistance of counsel ground for relief was not "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." § 2254(d)(1), (2); Williams, supra. Counsel testified that Petitioner admitted he was guilty of the drug offenses and that the substances were illegal. The PCR court found that Petitioner failed to meet the first and second prongs of Strickland, The PCR court found that, based on the testimony of the prosecutors, the co-defendants charges were only dismissed because of Petitioner's inability to be a reliable witness. The PCR court found Petitioner's testimony not credible while finding plea counsel's testimony credible. The PCR court's factual determinations regarding credibility are entitled to deference in this action. Cagle v. Branker, supra, (citing 28 U.S.C. § 2254(e)(1) (for a federal habeas court to overturn a state court's credibility judgments, the state court's error must be stark and clear)); see also Marshall v. Lonberger, supra, ("28 U.S.C. § 2254(d) gives federal habeas courts no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them"). Additionally, a presumption of correctness attaches to state court factual findings. 28 U.S.C. §2244(e)(1). Evans v. Smith, supra. The state PCR court's findings of fact are not only entitled to the presumption of correctness, 28 U.S.C. § 2254(e)(1), but also are supported by the record. Thus, it is recommended that the Respondent's motion for summary judgment be granted as to Ground One(8).

Ground One(9)

In Ground One(9), Petitioner asserts that his pleas were entered in violation of his right to equal protection of the law where his counsel advised him to plead guilty without reviewing the discovery. Plaintiff argues that his co-defendant received the benefit of full disclosure of the discovery materials which resulted in a jury trial and eventual acquittal. Respondent submits that the PCR court's ruling reasonably applied the mandates of Hill, supra, in rejecting this claim.

This issue was raised and ruled upon at PCR as follows:

(Order of Dismissal, tr. 198).

The PCR court's rejection of the ineffective assistance of counsel ground for relief was not "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." § 2254(d)(1), (2); Williams, supra. The PCR court found that Petitioner failed to meet the first and second prongs of Strickland. The PCR court found that the prosecutors who handled the case testified that the co-defendant's charges were only dismissed because of Petitioner's inability to be a reliable witness. The PCR court found Petitioner's testimony not credible while finding the testimony of counsel and the prosecutors credible. The PCR court's factual determinations regarding credibility are entitled to deference in this action. Cagle v. Branker, supra, (citing 28 U.S.C. § 2254(e)(1) (for a federal habeas court to overturn a state court's credibility judgments, the state court's error must be stark and clear)); see also Marshall v. Lonberger, supra, ("28 U.S.C. § 2254(d) gives federal habeas courts no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them"). Additionally, a presumption of correctness attaches to state court factual findings. 28 U.S.C. §2244(e)(1). Evans v. Smith, supra. The state PCR court's findings of fact are not only entitled to the presumption of correctness, 28 U.S.C. § 2254(e)(1), but also are supported by the record. Thus, it is recommended that the Respondent's motion for summary judgment be granted as to Ground One(9).

CONCLUSION

As set out above, a review of the record indicates that the petition should be dismissed. Therefore, it is RECOMMENDED that Respondent's motion for summary judgment (Doc. #14) be granted and the petition be dismissed without an evidentiary hearing.