United States District Court, D. South Carolina
Mayron R. Gilree, Petitioner,
Ceilia Reynolds, Respondent.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT, Magistrate Judge.
The petitioner, Mayron R. Gilree, 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. 15.) 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. 17.) Gilree filed a response in opposition. (ECF No. 19.) Pursuant to the court's order issued March 2, 2015, the respondent supplemented the record. (ECF No. 24.) Having carefully considered the parties' submissions and the record in this case, the court finds that Gilree's Petition is barred by 28 U.S.C. § 2244(d) as untimely.
Gilree was indicted in July 2009 in Spartanburg County for murder and possession of a weapon during commission of a violent crime (09-GS-42-4013). (App. at 79-80, ECF No. 16-1 at 81-82.) Gilree was represented by Andrea Price, Esquire, and on April 30, 2010, pleaded guilty to voluntary manslaughter. (App. at 81, ECF No. 16-1 at 14.) The circuit court sentenced Gilree to twenty years' imprisonment. (App. at 22, ECF No. 16-1 at 24.)
Counsel for Gilree timely filed a notice of appeal pursuant to Weathers v. State  and State v. Thrift . (App. at 24-26, ECF No. 16-1 at 26-28.) On July 16, 2010, the South Carolina Court of Appeals filed an order dismissing Gilree's appeal pursuant to South Carolina Appellate Court Rule 203(d)(1)(B)(iv). (App. at 27, ECF No. 16-1 at 29.) Gilree did not file a petition for rehearing. The remittitur was issued on August 5, 2010. (App. at 28, ECF No. 16-1 at 30.)
Gilree filed a pro se application for post-conviction relief on January 20, 2011 ("2011 PCR"). (Gilree v. State of South Carolina, 11-CP-421-240, App. at 29-35, ECF No. 16-1 at 31-37.) On January 30, 2012, the PCR court held an evidentiary hearing at which Gilree appeared and testified and was represented by Stephen C. Wofford, Esquire. By order filed March 29, 2012, the PCR court denied and dismissed Gilree's PCR application with prejudice. (App. at 72-78, ECF No. 16-1 at 74-80.)
Gilree, represented by Appellate Defender Dayne C. Phillips, Esquire, of the South Carolina Commission on Indigent Defense, filed a Johnson petition for a writ of certiorari on December 10, 2012. (ECF No. 16-4.) On February 21, 2013, the South Carolina Supreme Court denied Gilree's petition for a writ of certiorari. (ECF No. 16-5.) The remittitur was issued March 12, 2013. (ECF No. 16-6.)
Gilree filed additional pro se applications for post-conviction relief on May 7, 2013 and November 21, 2013. (Gilree v. State of South Carolina, 13-CP-42-2072, ECF No. 167; Gilree v. State of South Carolina, 13-CP-42-4715, ECF No. 16-8.) The State filed a return and motion to dismiss. (ECF No. 16-9.) The PCR court entered a conditional order of dismissal on March 12, 2014 in which it provisionally denied and dismissed Gilree's May 2013 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. 16-12.) Gilree filed a pro se response to the conditional order of dismissal. (ECF No. 16-11.) The PCR court issued an order of merger on July 28, 2014 consolidating Gilree's May 2013 and November 2013 PCR applications and directing that Gilree's November 2013 PCR application would be considered as an amendment to his May 2013 PCR application. (ECF No. 16-13.) A final order was filed on March 3, 2015 which denied and dismissed with prejudice Gilree's May 2013 PCR application for the reasons stated in the conditional order of dismissal. (ECF No. 24-1.)
Gilree filed the instant Petition for a writ of habeas corpus on September 16, 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 ...