United States District Court, D. South Carolina, Florence Division
OPINION & ORDER
M. Herlong, Jr. Senior United States District Judge
matter is before the court for review of the Report and
Recommendation of United States Magistrate Judge Thomas E.
Rogers, III, made in accordance with 28 U.S.C. §
636(b)(1) and Local Civil Rule 73.02 for the District of
South Carolina. Andrew Jammie Mack (“Mack”) is
a pro se state prisoner seeking habeas corpus relief pursuant
to 28 U.S.C. § 2254. In his Report and Recommendation,
Magistrate Judge Rogers recommends dismissing Mack's
petition on the basis that it is barred by the statute of
filed objections to the Report and
Recommendation. Objections to the Report and
Recommendation must be specific. Failure to file specific
objections constitutes a waiver of a party's right to
further judicial review, including appellate review, if the
recommendation is accepted by the district judge. See
United States v. Schronce, 727 F.2d 91, 94 & n.4
(4th Cir. 1984). In the absence of specific
objections to the Report and Recommendation of the magistrate
judge, this court is not required to give any explanation for
adopting the recommendation. See Camby v. Davis, 718
F.2d 198, 199 (4th Cir. 1983).
review, the court finds that many of Mack's objections
are non-specific, unrelated to the dispositive portions of
the magistrate judge's Report and Recommendation, or
merely restate his claims. However, the court was able to
glean one specific objection. Mack objects to the magistrate
judge's conclusion that his petition is time barred.
Specifically, he alleges that the time between his sentencing
date and the filing of his application for post conviction
relief (“PCR”) should be tolled with respect to
the statute of limitations for the instant § 2254
Antiterrorism and Effective Death Penalty Act
(“AEDPA”), 28 U.S.C. § 2244(d)(1)(A),
provides that the one-year time limitation for filing a
§ 2254 motion commences on “the latest of -- the
date on which the judgment became final by the conclusion of
direct review or the expiration of the time for
seeking such review.” The statute of limitations is
tolled only during the pendency of a properly filed PCR
action. See 28 U.S.C. § 2244(d)(2).
“[T]he AEDPA provides that upon conclusion of
direct review of a judgment of conviction, the
one-year period within which to file a federal habeas
petition commences, but the running of the period is
suspended for the period when state post-conviction
proceedings are pending in any state court.”
Harris v. Hutchinson, 209 F.3d 325, 327 (4th Cir.
December 19, 2012, Mack pled 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.” Mack was sentenced on
December 27, 2012, and did not file a direct appeal.
Therefore, Mack's conviction became final ten days later
on January 7, 2013, the expiration of the time period for
filing a timely direct appeal in state court. S.C. App. Ct.
R. 203(b)(2). Mack filed his PCR application on June 25,
2013, 169 days after his conviction became final. Therefore,
upon the filing of Mack's PCR claim, 169 days of the
statute of limitations for the instant action had run.
Mack's PCR application was denied on February 23, 2014.
Mack indicates that he appealed the dismissal of his PCR
application on November 18, 2014. According to court records,
Mack's PCR appeal was denied in an Order and Remittitur
from the South Carolina Supreme Court filed on April 7, 2015.
Thus, the one-year statute of limitations began to run again
on April 8, 2015. Mack filed the instant action on March 11,
2016, almost one year after the conclusion of his PCR action.
Therefore, the instant petition is clearly time barred. Based
on the foregoing, Mack's objection that he had one year
after the conclusion of his PCR action in which to file his
§ 2254 petition is wholly without merit.
there is no basis for applying the doctrine of equitable
tolling. “[E]ven in the case of an unrepresented
prisoner, ignorance of the law is not a basis for equitable
tolling.” United States v. Sosa, 364 F.3d 507,
512 (4th Cir. 2004). Therefore, after a thorough review of
the magistrate judge's Report and the record in this
case, the court adopts Magistrate Judge Rogers' Report
that Petitioner's habeas petition, docket number 1, is
dismissed with prejudice and without requiring Respondent to
file a return. It is further
that Petitioner's motion for leave to proceed under
Equitable Tolling Process, docket number 17, is dismissed as
moot. It is further
that a certificate of appealability is denied because Mack
has failed to make “a substantial showing of the denial
of a constitutional right.” 28 U.S.C. §