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Carter v. Dunlap

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

June 23, 2016

Derek Shane Carter, #00275938, Petitioner,
v.
David W. Dunlap, Respondent.

          ORDER AND OPINION

         Petitioner Derek Shane Carter ("Petitioner"), proceeding pro se and in forma pauperis, brings this action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) The matter is before the court for review of the Report and Recommendation ("Report"), filed on March 2, 2016, recommending that David W. Dunlap's ("Respondent") Motion for Summary Judgment (ECF No. 23) be granted and Petitioner's § 2254 action be dismissed as untimely. (ECF No. 31.)

         For the following reasons, the court ADOPTS the Magistrate Judge's Report (ECF No. 31), GRANTS Respondent's Motion for Summary Judgment (ECF No. 23) and DISMISSES Petitioner's Complaint (ECF No. 1) with prejudice as untimely.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The Report contains a thorough recitation of the relevant factual and procedural background of the matter. (ECF No. 33 at 1-4.) The court concludes upon its own careful review of the record that the Report's factual and procedural summation is accurate, and the court adopts this summary as its own.

         II. LEGAL STANDARD

         The Report is made in accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina. Therefore, the Magistrate Judge makes only a recommendation to this court. The court reviews de novo only those portions of a Magistrate Judge's recommendation to which specific objections are filed. See Diamond v. Colonial Life & Ace. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983); Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The court reviews those portions that are not objected to-including those portions to which only "general and conclusory" objections have been made-for clear error. Id. The court may accept, reject, or modify-in whole or in part-the recommendation of the Magistrate Judge or recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).

         III. ANALYSIS

         Petitioner sought habeas corpus relief pursuant to § 2254, but the federal statute of limitations for his claim expired.[1] The Magistrate Judge concluded that Petitioner fails to demonstrate entitlement to equitable tolling of the statute of limitations because he presents no evidence of circumstances preventing him from filing a timely federal petition. (ECF No. 31 at 9.) Accordingly, the court agrees with the Magistrate Judge's recommendation to dismiss Petitioner's Complaint (ECF No. 1) as untimely.

         Petitioner objects and alleges that dismissing his petition as "untimely denies petitioner the benefit and/or right of an appeal of petitioner's novel federal claim." (ECF No. 33 at 1.) Additionally, Petitioner alleges he diligently pursued his federal claim. (Id.) However, Petitioner provides no evidence that the claim was considered a genuine novel issue nor satisfies the elements necessary to be granted equitable tolling as an otherwise time-barred petitioner.

         Furthermore, even if properly raised, Petitioner's argument that the trial court lacked subject matter jurisdiction due to an allegedly erroneous indictment is an issue of law for the South Carolina courts, not a federal district court. See Pearson v. McFadden, No. 9:14-03943, 2015 WL 6163437, at *15 (D.S.C. Oct. 16, 2015) (citing Thompson v. Perry, No. 06-03429, 2007 WL 2579570, at *4 (D.S.C. Sept. 4, 2007)).

         The court is not obligated to provide de novo review because Petitioner fails to provide specific objections. Fed.R.Civ.P. 72(b)(3) (requiring a district judge to determine de novo any part of the magistrate judge's disposition that has been properly objected to). Therefore, the court must "only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Diamond v. Colonial Life & Ace. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting an advisory committee note in Fed.R.Civ.P. 72). Upon review of the record, no clear errors are found.

         IV. CONCLUSION

         For the aforementioned reasons, the court ADOPTS the Magistrate Judge's Report (ECF No. 31), GRANTS Respondent's Motion for Summary Judgment (ECF No. 23), and DISMISSES ...


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