United States District Court, D. South Carolina, Florence Division
REPORT AND RECOMMENDATION
E. ROGERS, III, Magistrate Judge.
Turner ("Petitioner"), a state prisoner proceeding
pro se, seeks habeas corpus relief pursuant to 28
U.S.C. Â§ 2254.
to the provisions of 28 U.S.C. Â§ 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.
Factual and Procedural Background
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. 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
ype=C (Search by Petitioner's name and "Search
Public Index")(last visited May 3, 2015) see
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).
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. 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.
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. Â§ 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.
Standard of Review
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).
Statute of Limitations
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).
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. Â§ 2244 to establish a one-year statute of