United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT, Magistrate Judge.
The petitioner, Jonathan Dennis Carter, a self-represented state prisoner, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on the respondent's motion for summary judgment. (ECF No. 18.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised the petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to the respondent's motion. (ECF No. 19.) Carter filed a response in opposition. (ECF No. 21.) Having carefully considered the parties' submissions and the record in this case, the court finds that Carter's Petition is barred by 28 U.S.C. § 2244(d) as untimely.
Carter was indicted in January 2005 in Lancaster County for second degree burglary (05-GS-29-43) and petit larceny (05-GS-29-44). (App. at 327-32, ECF No. 17-10 at 129-34.) Carter was represented by Ross A. Burton, Esquire, and on March 13-14, 2006, was tried by a jury and found guilty as charged. (App. at 313-14, ECF No. 17-10 at 113-14.) The circuit court sentenced Carter to life imprisonment for second degree burglary and ten years' imprisonment for petit larceny, both sentences to be served concurrently. (App. at 323-25, ECF No. 17-10 at 123-25.)
Carter timely appealed and was represented by Eleanor Duffy Cleary, Esquire, of the South Carolina Office of Appellate Defense, who filed a brief on Carter's behalf. (ECF No. 17-1.) On July 24, 2008, the South Carolina Court of Appeals affirmed Carter's conviction and sentence. (State v. Carter, Op. No. 2008-UP-429 (S.C. Ct. App. July 24, 2008), ECF No. 17-3.) Carter did not file a petition for rehearing. The remittitur was issued on August 11, 2008. (ECF No. 17-4.)
Carter filed a pro se application for post-conviction relief on February 5, 2009 ("2009 PCR"). (Carter v. State of South Carolina, 09-CP-29-190, App. at 333-39, ECF No. 17-10 at 135-41.) On August 24, 2009, the PCR court held an evidentiary hearing at which Carter appeared and testified and was represented by Charles T. Brooks, III, Esquire. By order filed October 21, 2009, the PCR court denied and dismissed Carter's PCR application with prejudice. (App. at 367-72, ECF No. 17-10 at 169-74.)
Carter, represented by Appellate Defender Kathrine H. Hudgins, Esquire, of the South Carolina Commission on Indigent Defense, filed a Johnson petition for a writ of certiorari on June 14, 2010. (ECF No. 17-5.) Carter filed a pro se response to the Johnson petition. (ECF No. 17-6.) On August 4, 2011, the South Carolina Supreme Court issued an Order in which it denied Carter's petition for a writ of certiorari. (ECF No. 17-7.) The remittitur was issued August 23, 2011. (ECF No. 17-8.)
Carter filed a second pro se application for post-conviction relief on September 19, 2011 ("2011 PCR"). (Carter v. State of South Carolina, 11-CP-29-1283, ECF No. 17-11.) The State filed a return and motion to dismiss. (ECF No. 17-12.) The PCR court entered a Conditional Order of Dismissal on August 29, 2012 in which it provisionally denied and dismissed Carter's 2011 PCR application as successive to his prior PCR application and as untimely under the limitations provision of the Uniform Post-Conviction Procedure Act, SC Code Ann. § 17-27-45(a). (ECF No. 17-14.) Carter filed a pro se response to the conditional order of dismissal. (ECF No. 17-15.) A Final Order was filed on May 29, 2013 which denied and dismissed with prejudice Carter's 2011 PCR application for the reasons stated in the conditional order of dismissal. (ECF No. 17-17.)
Carter filed the instant Petition for a writ of habeas corpus on May 15, 2014. (ECF No. 1.)
A. Summary Judgment Standard
Summary judgment is appropriate only if the moving party "shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A party may support or refute that a material fact is not disputed by "citing to particular parts of materials in the record" or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1). Rule 56 mandates entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In deciding whether there is a genuine issue of material fact, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(c), (e); Celotex Corp., 477 U.S. at 322. Further, while the federal court is charged with liberally construing a petition filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts ...