Brockmeyer v. Stirling

               IN THE UNITED STATES DISTRICT COURT                       
               FOR THE DISTRICT OF SOUTH CAROLINA                        
                         AIKEN DIVISION                                  

William Mark Brockmeyer,       )     Case No.: 1:23-cv-01645-JDA         
                               )                                         
               Petitioner,     )                                         
                               )                                         
     v.                        )       OPINION AND ORDER                 
                               )                                         
Bryan Stirling, Commissioner, South  )                                   

Carolina Department of Corrections;  )                                   
Kirkland Correctional Institution,  )                                    
                               )                                         
               Respondents.    )                                         

    Petitioner, a state prisoner represented by counsel, seeks habeas corpus relief 
pursuant to 28 U.S.C. § 2254.  This matter is before the Court on Respondents’ motion 
for summary judgment.  [Doc. 10.]  In accordance with 28 U.S.C. § 636(b) and Local Civil 
Rule 73.02(B)(2), D.S.C., this matter was referred to United States Magistrate Judge 
Shiva V. Hodges for pre-trial proceedings.                                
    On  September  22,  2023,  the  Magistrate  Judge  issued  a  Report  and 
Recommendation  (“Report”)  recommending  that  Respondents’  motion  for  summary 
judgment be granted.  [Doc. 15.]  The Magistrate Judge advised the parties of the 
procedures  and  requirements  for  filing  objections  to  the  Report  and  the  serious 
consequences if they failed to do so.  [Id. at 30.]  Petitioner filed objections to the Report 
on September 26, 2023.1  [Doc. 16.]                                       

1 The case was reassigned to the undersigned on February 16, 2024.  [Doc. 20.] 
                      STANDARD OF REVIEW                                 
    The  Magistrate  Judge  makes  only  a  recommendation  to  this  Court.  The 
recommendation has no presumptive weight, and the responsibility to make a final 
determination remains with the Court.  See Mathews v. Weber, 423 U.S. 261, 270–71 
(1976).  The Court is charged with making a de novo determination of any portion of the 

Report of the Magistrate Judge to which a specific objection is made.  The Court may 
accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate 
Judge or recommit the matter to the Magistrate Judge with instructions.  See 28 U.S.C. 
§ 636(b). The Court will review the Report only for clear error in the absence of an 
objection.  See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 
2005) (stating that “in the absence of a timely filed objection, a district court need not 
conduct a de novo review, but instead must only satisfy itself that there is no clear error 
on the face of the record in order to accept the recommendation” (internal quotation marks 
omitted)).                                                                

                          DISCUSSION                                     

    The Magistrate Judge recommends granting Respondents’ motion for summary 
judgment because each of Petitioner’s grounds for relief fails on the merits.  [Doc. 15.]  In 
his habeas petition, Petitioner raises three grounds for relief, which the Court quotes 
substantially verbatim:                                                   
         1.  Trial counsel was ineffective by his admitted failure to    
           object  to  inadmissible  hearsay  that  “people  had  seen   
           [Petitioner] shoot [the decedent]” in a shooting outside of   
           a  crowded  bar  that  Petitioner  testified  was  accidental, 
           thereby depriving Petitioner of his Sixth Amendment right     
           to counsel.                                                   
         2.  The  trial  court’s  failure  to  grant  Petitioner’s  motion  to 
           enforce a subpoena to a media news outlet to provide the      
           identification  of  an  anonymous  commenter  whose           
           comment  on  the  news  story  regarding  the  shooting       
           supported the defense’s position that the shooting was        
           accidental  violated  Petitioner’s  rights  under  the  Sixth 
           Amendment’s Compulsory Process Clause.                        

         3.  The trial judge committed reversible error by permitting the 
           State  to  use  a  computer  log  to  establish  the  chain  of 
           custody  rather  than  witnesses  subject  to  cross          
           examination in violation of Petitioner’s rights under the     
           Sixth Amendment’s Confrontation Clause.                       

[Doc. 1 at 12, 19, 26 (alterations in original).]                         
Ground One                                                                
    In analyzing Petitioner’s claim that his trial counsel was ineffective in failing to 
object to inadmissible hearsay, the Magistrate Judge considered the test in Strickland v. 
Washington, 466 U.S. 668 (1984), and the standard under § 2254(d)2 and concluded that 
Petitioner  had  “failed  to  show  the  PCR  Judge’s  conclusion  that  trial  counsel’s 
performance  was  not  deficient  was  an  unreasonable  application  of  federal  law, 
particularly  Strickland,  or  show  by  clear  and  convincing  evidence  that  a  factual 
determination was made incorrectly.”  [Doc. 15 at 15]; see Strickland, 466 U.S. at 687 
(establishing that to challenge a conviction based on ineffective assistance of counsel, a 
prisoner must prove two elements: (1) his counsel was deficient in his representation and 
(2) he was prejudiced as a result).  Specifically, the Magistrate Judge noted that the PCR 
court  “relied  on  South  Carolina  precedent  to  determine  the  statements  were  not 

2 This  Court’s  review  of  a  state  court’s  adjudication  of  the  merits  of  an  ineffective 
assistance of counsel claim is highly deferential to counsel under Strickland and highly 
deferential to state courts under 28 U.S.C. § 2254(d).  Knowles v. Mirzayance, 556 U.S. 
111, 123 (2009).                                                          
inadmissible hearsay and, therefore, trial counsel was not ineffective for failing to object.”  
[Id.]  Because the Magistrate Judge determined that the PCR court’s ruling that trial 
counsel’s  performance  was  not  deficient  was  not  an  unreasonable  application  of 
Strickland or based on an incorrect factual determination, she further determined that it 
was “unnecessary to address Petitioner’s additional argument that the PCR [court] erred 

in determining Petitioner was not prejudiced.”  [Id. at 18 n.5.]  Finally, the Magistrate Judge 
concluded that, “[t]o the extent that Ground One challenges a decision based on South 
Carolina’s evidentiary rules and the PCR [court’s] analysis based on South Carolina state 
law, it is not cognizable in a habeas proceeding before this [C]ourt.”  [Id. at 17.] 
    In his objections, Petitioner asserts that Ground One “does not rest on the PCR 
court ruling the statement was not inadmissible hearsay,” and instead his “argument is 
that the PCR Court’s ruling that trial counsel was not ineffective was an unreasonable 
application of federal law and an unreasonable determination of the facts because [of] the 
Court’s ruling that the failure to object to the statement was not a deficient performance 

by trial counsel and because Petitioner could not prove prejudice.”  [Doc. 16 at 2.]  
Petitioner contends that the PCR court’s ruling was an unreasonable application of 
Strickland and was an unreasonable determination of the facts because the State’s case 
“hinged” on whether Petitioner accidentally or intentionally shot the victim and “[a]llowing 
this statement in evidence from [the witness] that other unknown persons were saying 
Petitioner shot [the victim] gave the State’s witness more credibility without requiring the 
State to prove its case by putting these alleged witnesses on the stand to testify before 
the jury and submit themselves to cross examination.”  [Id. at 2–3.]  Thus, Petitioner 
argues that trial counsel’s failure to object to this extremely prejudicial statement was 
deficient performance that prejudiced Petitioner.3  [Id. at 3.]           
    Under the Sixth Amendment, Petitioner, as a criminal defendant, had a right to 
effective assistance of counsel.  Strickland, 466 U.S. at 686.  The Magistrate Judge 
correctly explained that in a federal habeas claim based on ineffective assistance of 

counsel, “the question is not whether counsel’s actions were reasonable, but whether 
there  is  any  reasonable  argument  that  counsel  satisfied  Strickland’s  deferential 
standards.”  [Doc. 15 at 11 (internal quotation marks omitted).]  As stated, the Magistrate 
Judge concluded that Petitioner could not show that the PCR court’s determination that 
trial  counsel’s  performance  was  not  deficient  was  an  unreasonable  application  of 
Strickland or an unreasonable factual determination.  [Id. at 15.]  This Court agrees with 
the Magistrate Judge’s analysis for the reasons stated by the Magistrate Judge.  [Id. at 
11–18.]  Accordingly, the Court overrules Petitioner’s objection to Ground One.  
Ground Two                                                                

    The Magistrate Judge concluded that Petitioner failed to show that the Supreme 
Court of South Carolina or the PCR court unreasonably applied federal law or made an 
unreasonable determination of the facts with respect to Petitioner’s claim that the trial 
court violated his Sixth Amendment right to compulsory process by failing to grant his 


3 Petitioner also seems to contend that the Magistrate Judge based her decision in part 
on Petitioner’s inability to show prejudice.  [Doc. 16 at 1 (“The Magistrate Judge reasoned 
that Petitioner did not meet his burden because he could not prove with reasonable 
certainty that the outcome of his trial would have been different had trial counsel objected 
to this statement from [the witness].”) (citing Doc. 15 at 13).]  However, as stated, the 
Magistrate Judge found it unnecessary to reach the question of whether the PCR court 
erred in determining Petitioner was not prejudiced.  [Doc. 15 at 18 n.5.]  Nonetheless, 
much of Petitioner’s objection concerning Ground One is based on the prejudice prong of 
the Strickland analysis.  [Doc. 16 at 1–3.]                               
motion  to  enforce  a  subpoena  to  a  news  outlet  to  provide  the  identification  of  an 
anonymous commenter.  [Doc. 15 at 23.]  In his objections, Petitioner argues that the 
state supreme court’s and the PCR court’s conclusions that Petitioner could have learned 
the  name  of  the  anonymous  commenter  from  the  sign-in  sheets  at  the  bar  were 
unreasonable determinations of the facts because “the only way to ascertain the name of 

this anonymous commenter was through the website.”4  [Doc. 16 at 3–4.]  Petitioner also 
asserts that the PCR court’s ruling that his argument as to prejudice on this issue was 
merely speculative is likewise an unreasonable determination of the facts.  [Id. at 4.]   
    Here, for the reasons stated by the Magistrate Judge [Doc. 15 at 18–25], Petitioner 
has not shown that the state supreme court’s and the PCR court’s conclusions were 
unreasonable determinations of the facts, particularly where the trial court directed the 
State to assist the defense in identifying the anonymous poster and then Petitioner failed 
to  re-raise  the  issue  with  the  trial  court  or  ask  the  trial  court  for  more  assistance.  
Accordingly, the Court overrules Petitioner’s objection to Ground Two.    

Ground Three                                                              
    The Magistrate Judge concluded that Petitioner failed to show that the Supreme 
Court of South Carolina unreasonably applied federal law or made an unreasonable 
determination of the facts with respect to Petitioner’s claim that the trial court violated his 
Sixth Amendment right to confront the witnesses against him related to the chain of 
custody of evidence presented.  [Doc. 15 at 29.]  In his objections, Petitioner argues that 


4 As the Magistrate Judge noted [Doc. 15 at 23], Petitioner concedes that “[t]here is not 
clearly established federal law specifically weighing an anonymous commenter’s right to 
remain anonymous under the First Amendment versus the criminal defendant’s right to 
Compulsory Process under the Sixth Amendment” [Doc. 1 at 24].             
“where the government chooses to introduce testimony to establish the chain of custody, 
that testimony must be live.”  [Doc. 16 at 5 (citing Melendez-Diaz v. Mass., 557 U.S. 305 
(2009)).]                                                                 
    The Sixth Amendment states that “[i]n all criminal prosecutions, the accused shall 
enjoy the right . . . to be confronted with the witnesses against him.”  U.S. Const. amend. 

VI.  For the reasons stated by the Magistrate Judge, Petitioner has not shown that the 
state supreme court’s decision was contrary to or an unreasonable application of federal 
law, particularly where, as the Magistrate Judge noted, he has failed to address extensive 
case law and analysis by the Supreme Court of South Carolina and arguments by 
Respondents that admitting the evidence did not violate the Confrontation Clause.  [Doc. 
15 at 25–29]; see United States v. Forstell, 656 F. Supp. 2d 578, 580 (E.D. Va. 2009) 
(noting that the admission of nontestimonial exhibits without live testimony does not run 
afoul of the Confrontation Clause).  Accordingly, the Court overrules Petitioner’s objection 
to Ground Three.                                                          

                          CONCLUSION                                     
    Based upon the foregoing, the Court accepts the Report and Recommendation of 
the Magistrate Judge and incorporates it by reference.  Accordingly, Respondents’ motion 
for summary judgment [Doc. 10] is GRANTED and the § 2254 petition [Doc. 1] is DENIED. 
                  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)(2) 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 petitioner satisfies the standard by demonstrating that reasonable 
jurists would find this Court’s assessment of the 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 (2003); Slack v. McDaniel, 529 U.S. 473 (2000); Rose 
v. Lee, 252 F.3d 676, 683 (4th Cir. 2001).                                

    In this case, the Court concludes that 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.                                                    
                                  s/Jacquelyn D. Austin                  
                                  United States District Judge           

Columbia, South Carolina                                                  
September 30, 2024