United States District Court, District of South Carolina
Joseph W. Schmitz, # 173987, Petitioner,
Warden E. Taylor, Respondent.
Richard M. Gergel United States District Court Judge
This matter is before the Court on the Report and Recommendation ("R & R") of the Magistrate Judge recommending that the Petition for Writ of Habeas Corpus in this case be dismissed. (Dkt. No. 13). For the reasons set forth below, the Court agrees and ADOPTS the R & R as the order of the Court. Accordingly, Petitioner's Petition for Writ of Habeas Corpus is DISMISSED.
The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and responsibility for making a final determination remains with this Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). In reviewing these pleadings, the Court is mindful of its charge to construe liberally the pleadings of this pro se litigant. See, e.g., De 'Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003).
This court is charged with making a de novo determination of those portions of the R & R or specified proposed findings or recommendations to which objection is made. Diamond v. Colonial Life & Ace. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting 28 U.S.C. § 636(b)(1)); accord Fed. R. Civ. P. 72(b). As to portions of the R & R to which no specific objection has been made, this Court "must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Id. (quoting Fed.R.Civ.P. 72 advisory committee note).
On March 25, 1991, Petitioner pled guilty and was convicted on two counts of assault and battery with intent to kill, and one count of armed robbery. (Dkt. No. 13). Following his conviction, Petitioner was sentenced to a 6 5-year prison sentence in the Court of General Sessions for Charleston County. (Id.).
According to Petitioner's allegations, he filed a post-conviction relief ("PCR") application. (Dkt. No. 1). Although Petitioner has not provided the Court with the date of filing or any documents relating to the PCR, Charleston County's court records indicate his PCR application was filed on March 25, 1994, and it was dismissed with prejudice on October 17, 1995. (Dkt. No. 13). Subsequently, Petitioner appealed the dismissal of his PCR application, and on December 23, 1996, the appellate court filed its remittutur dismissing the appeal. (Id.). Petitioner does not allege, nor can the Court find, any other PCR or appellate cases relating to his convictions and sentences.
In his Habeas Petition, Petitioner argues that his sentence is excessive and that his trial counsel was ineffective because she purportedly did not file a motion to reconsider the sentence or a direct appeal on his behalf, nor, according to his allegations, did she inform him that he had a right to appeal. (Dkt. No. 1).
The Anti-Terrorism and Effective Death Penalty Act ("AEDPA") prescribes a uniform statute of limitations in federal habeas matters. Pursuant to that Act, "[a] 1 -year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court." Day v. McDonough, 547 U.S. 198, 202 n.l (2006) (quoting 28 U.S.C. § 224(d)(1)). However, AEDPA did not come into effect until April 24, 1996. In the present case, Petitioner's convictions became final before the passage of AEDPA, on December 23, 1996, when the South Carolina Supreme Court dismissed the appeal and sent its remittutur to the Charleston County court. (Dkt. No. 13).
In Harris v. Hutchinson, 209 F.3d 325, 328 (4th Cir. 2000), the Fourth Circuit ruled that for state convictions that became final before the effective date of AEDPA, prisoners are given a one-year period to pursue federal habeas corpus relief, beginning on the effective date of the Act, April 24, 1996. See also Clark v. Padula, No. 3:11-1690-MBS, 2012 WL 4051280 (D.S.C. Sept. 12, 2012). However, Petitioner's PCR appeal remained pending on AEDPA's effective date. Thus, the court considers the date that the one-year statute of limitations began to run as December 23, 1996, the date of the conclusion of his PCR appeal. Therefore, Petitioner's one-year limitation period ran un-tolled from December 24, 1996, until December 26, 1997. As a result, any habeas petition filed after December 26, 1997, must be considered untimely. The present petition was submitted September 9, 2014, (Dkt. No. 13). Thus, the petition is time-barred.
On November 10, 2014, Petitioner filed an objection to the R & R of the Magistrate Judge. (Dkt. No. 18). In his objection, Petitioner alleges the solicitor, at the time of his sentencing, was involved with the victim "insomuch as he knows the victim personally." (Id.).
Furthermore, Petitioner believes this is newly or after discovered evidence, and that at the time of sentencing, the solicitor was highly prejudicial towards Petitioner due to his alleged personal relationship with the victim. (Id.). Although Petitioner fails to state the basis or any evidence that supports these allegations, the Court may not consider the merits of these claims unless they give rise to a claim for equitable tolling of the statute of limitations.
Aligning with the precedent previously set forth in the Fourth Circuit, the United States Supreme Court recognized that the limitations period under AEDPA is subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 649 (2010); Harris, 209 F.3d at 328 ("As a general matter, principles of equitable tolling may, in the proper circumstances, apply to excuse a plaintiffs failure to comply with the strict requirements of a statute of limitations."). However, the Court held that the limitations period may be equitably tolled only if the petitioner shows, "(1) that he has been pursuing his rights ...