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Turner v. Stevenson

United States District Court, D. South Carolina, Florence Division

May 16, 2016

Jeremiah Turner, #340197, Petitioner,
v.
Robert Stevenson, Warden of Broad River Correctional Institution, Respondent.

          REPORT AND RECOMMENDATION

          THOMAS E. ROGERS, III, Magistrate Judge.

         Jeremiah Turner ("Petitioner"), a state prisoner proceeding pro se, seeks habeas corpus relief pursuant to 28 U.S.C. § 2254.

         Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.), the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the district judge. For the reasons that follow, the undersigned recommends the district judge dismiss the Petition without prejudice and without issuance and service of process.

         I. Factual and Procedural Background

         Petitioner is a state prisoner incarcerated in the South Carolina Department of Corrections and housed at the Broad River Road Correctional Institution in Columbia, South Carolina. Petitioner is serving a sentence of Thirty years for First Degree Criminal Sexual Conduct with a Minor and a sentence of Fifteen years for Committing a Lewd Act with a Child Under the Age of Sixteen which were entered in the Court of General Sessions for Charleston County on April 8, 2010. (ECF No. 1.) Petitioner timely noticed his direct appeal on April 12, 2010[1]. Petitioner states that on June 13, 2012, the South Carolina Court of Appeals dismissed his appeal. (ECF No. 1 at 2.) On July 5, 2012, the remittitur was filed. See http://jcmsweb.charlestoncounty.org/Public Index/CaseDetails.aspx?County=10&CourtAgency=10001&Casenum=2009GS1002432&CaseT ype=C (Search by Petitioner's name and "Search Public Index")(last visited May 3, 2015) see http://jcmsweb.charlestoncounty.org/Public Index/CaseDetails.aspx?County=10&CourtAgency=10001&Casenum=2009GS1002435&CaseT ype=C (Search by Petitioner's name and "Search Public Index")(last visited May 3, 2015); see Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989)(federal courts may take judicial notice of proceedings in other courts if those proceedings have a direct relation to matters at issue).

         On July 16, 2013, Petitioner filed an application for post-conviction relief ("PCR"). (ECF No. 1 at 3.) An evidentiary hearing was held on December 10, 2014. (ECF No. 1 at 5.) By order filed December 15, 2014, the court dismissed the PCR application.[2] Petitioner indicates that he appealed the dismissal of his PCR application. (ECF No. 1 at 3.) The South Carolina Supreme Court dismissed his appeal and the remittitur was filed on March 25, 2016.[3]

         On March 10, 2016, Petitioner filed the instant petition for a writ of habeas corpus alleging a claim of ineffective assistance of counsel. (ECF No. 1-1) See Houston v. Lack, 487 U.S. 266, 271 (1988) ( pro se prisoner's pleading is deemed "filed" at moment of delivery to prison authorities for forwarding to district court). Upon initial review of the petition, it appeared more likely than not from the face of the petition that this case was untimely. The record reflects that Petitioner failed to answer question 18 on the Court approved petition form that he used. (ECF No. 1 at 13.) This question specifically asks any petitioner whose conviction became final over one year before the petition was filed to explain why the petition is not barred under 28 U.S.C. § 2244(d). Because the petition appeared untimely on its face, Petitioner was given Special Interrogatories to answer to clarify the dates that Petitioner had sought review of his conviction. (ECF No. 11.) Petitioner's answers to the Court's Special Interrogatories confirmed dates of filing and decisions relative to his use of state court remedies that he had given in the petition.

         II. Discussion

         A. Standard of Review

         Under established local procedure in this judicial district, a careful review has been made of this petition pursuant to the Rules Governing Section 2254 Proceedings for the United States District Court, the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, and other habeas corpus statutes. Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). When a federal court is evaluating a pro se complaint, a Plaintiff's or Petitioner's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).

         B. Analysis

         1. Statute of Limitations

         The petition in this case was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Accordingly, the provisions of the AEDPA apply. Lindh v. Murphy, 521 U.S. 320, 336-37 (1997).

         The Antiterrorism and Effective Death Penalty Act ("AEDPA") substantially modified procedures for consideration of habeas corpus petitions of state inmates in the federal courts. One of those changes was the amendment of 28 U.S.C. § 2244 to establish a one-year statute of ...


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