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MacK v. Warden, Trenton Correctional Institution

United States District Court, D. South Carolina

August 22, 2016

Andrew Jammie Mack, #353612, Petitioner,
v.
Warden, Trenton Correctional Institution, Respondent.

          Andrew Jammie Mack, Petitioner, Pro Se.

          REPORT AND RECOMMENDATION

          THOMAS E. ROGERS, III, Magistrate Judge.

         The Petitioner, Andrew Jammie Mack ("Petitioner"), a pro se prisoner confined at Allendale Correctional Institution, filed a 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)(c) DSC. Having reviewed the petition in accordance with applicable law, the court concludes that it should be summarily dismissed.

         Background of this Case[1]

         On December 19, 2012, in the Circuit Court of General Sessions for Chester County, the Petitioner pleaded guilty to "Drugs/Trafficking in ice, crank or crack - 28 g or more, but less than 100 g - 2nd offense" and "Weapons/Poss. weapon during violent crime, if not also sentenced to life without parole or death" and was sentenced to five years and seven years. Petitioner indicates that no direct appeal was filed. (Pet. at 2). Petitioner indicated that he filed an application for postconviction relief on June 25, 2013. (Case No. 2013-CP-12-00285). Petitioner indicates that the Court of Common Pleas dismissed the PCR application on February 23, 2014. The Petition states that on November 18, 2014, Petitioner filed a "Johnson Petition for Writ of Certiorari" to appeal the dismissal of his PCR application. Petitioner states a denial was received on March 18, 2015. Petitioner filed the instant habeas petition on March 11, 2016. State court public records indicate the PCR was appealed and an Order and Remittitur from the South Carolina Supreme Court were filed in the lower court on April 7, 2015.

         Since the petition in this case is untimely, in an order (ECF No. 11) dated April 20, 2016, the undersigned directed the petitioner as follows:

Upon initial review of the Petition, it appears from the face of the Petition that this case may be untimely filed. This order is notice to Petitioner that the court is considering dismissal of his case based on the running of the one-year statute of limitations. Unless the petitioner provides facts casting doubt on the issue of untimeliness of his Petition and thereby prevent dismissal based on the limitations bar, this case may be subject to dismissal.
Accordingly, Petitioner is granted twenty-one (21) days to file a factual explanation with this court to show cause why his Petition should not be dismissed based on the application of the one-year limitation period established by 28 U.S.C. § 2244(d), including but not limited to, factual dispute regarding the relevant dates of filings in state court mentioned above and/or facts supporting the application of equitable tolling. See Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003).

         Additionally, the Order cited law in regard to the functioning of the habeas one-year statute of limitations:

Section 2244(d) provides that a petition for writ of habeas corpus must be filed within one year of the date on which the conviction being challenged becomes final. The one-year period does not run ("is tolled") during the time period that a direct appeal and a post-conviction relief ("PCR") application are pending. Further, § 2244(d)'s one-year statute of limitations is subject to equitable tolling which could extend the final date for filing. Lindh v. Murphy, 521 U.S. 320 (1997); Harris v. Hutchinson, 209 F.3d 325 (4th Cir. 2000). A petitioner may be entitled to equitable tolling of the statute of limitations if he can demonstrate "(1) extraordinary circumstances, (2) beyond his control or external to his own conduct, (3) that prevented him from filing on time." Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003). In 2010, the United States Supreme Court considered the issue and held that the statute would be equitably tolled "only if [the petitioner] shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Holland v. Florida, 560 U.S. 631, 649 (quoting Pace, 544 U.S. at 418)).

         Discussion

         Under established local procedure in this judicial district, a careful review has been made of the pro se pleadings and motion to proceed in forma pauperis pursuant to the procedural provisions of 28 U.S.C. § 1915 and the Anti-Terrorism and Effective Death Penalty Act of 1996. The review has been conducted in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995)( en banc ); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978); and Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The petitioner is a pro se litigant, and thus his pleadings are accorded liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007)( per curiam ); Cruz v. Beto, 405 U.S. 319 (1972). Even under this less stringent standard, the petition is subject to summary dismissal. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Department of Social Services, 901 F.2d 387, 390-91 (4th Cir. 1990).

         With respect to his convictions and sentences, the petitioner's sole federal remedies are a writ of habeas corpus under either 28 U.S.C. § 2254 or 28 U.S.C. § 2241, which remedies can be sought only after the petitioner has exhausted his state court remedies. "It is the rule in this country that assertions of error in criminal proceedings must first be raised in state court in order to form the basis for relief in habeas. Claims not so raised are considered defaulted." Beard v. Green, 523 U.S. 371, 375 (1998) (citing Wainwright v. Sykes, 433 U.S. 72 (1977)); see also 28 U.S.C. § 2254(b); Braden v. ...


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