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Housey v. Warden, Lieber Corr. Inst.

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

September 13, 2016

Dwayne Housey, #328012 Petitioner,
v.
Warden, Lieber Corr. Inst., Respondent.

          ORDER

          Richard Mark Gergel United States District Court Judge

         This matter is before the Court on the Report and Recommendation "of the Magistrate Judge, recommending that Respondent's motion for summary judgment be granted. For the reasons set forth below, the Court adopts the Report and Recommendation.

         I. Background

         Petitioner is currently incarcerated in the Lieber Correctional Institution of the South Carolina Department of Corrections. On April 21, 2008, Petitioner was convicted in York County, South Carolina, for trafficking cocaine and sentenced to twenty-five years' imprisonment. On January 25, 2011, the South Carolina Court of Appeals affirmed Petitioner's conviction and sentence. (Dkt. No. 25-9.) Petitioner filed an application for Post-Conviction Relief ("PCR") on April 4, 2011, alleging ineffective assistance of trial counsel because trial counsel failed to object to prosecutorial misconduct. On May 10, 2012, the PCR court denied Petitioner's PCR application. The South Carolina Court of Appeals denied Petitioner's Petition for Writ of Certiorari regarding his PCR application on November 4, 2014. (Dkt. No. 25-14.) The remittitur was issued on November 20, 2014, and was filed in the York County Circuit Court on November 24, 2014. (Dkt Nos. 25-15 & 25-16.) Petitioner filed the present habeas petition on January 4, 2016. (Dkt. No. 1.) On August 23, 2016, the Magistrate Judge recommended the petition be denied as untimely. (Dkt. No. 31 at 16.) On September 6, 2016, Petitioner filed "Objections to the Magistrate's Report and Recommendation" stating "Petitioner ... hereby respectfully abides by the report and recommendation of the Honorable United States Magistrate Judge, Kaymani D. West, with no objections. The Petitioner wishes to backtrack to correct his legal position in this matter" (Dkt. No. 33.)

         II. Legal Standard

         A. Report and Recommendation of the Magistrate Judge

         The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made. The Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge. 28 U.S.C. § 636(b)(1).

         When a proper objection is made to a particular issue, "a district court is required to consider all arguments directed to that issue, regardless of whether they were raised before the magistrate." United States v. George, 971 F.2d 1113, 1118 (4th Cir. 1992). However, "[f]he district court's decision whether to consider additional evidence is committed to its discretion, and any refusal will be reviewed for abuse." Doe v. Chao, 306 F.3d 170, 183 & n.9 (4th Cir. 2002). "[Attempts to introduce new evidence after the magistrate judge has acted are disfavored, " though the district court may allow it "when a party offers sufficient reasons for so doing." Caldwell v. Jackson, 831 F.Supp.2d 911, 914 (M.D. N.C. 2010) (listing cases).

         B. Summary Judgment

         Summary judgment is appropriate if a party "shows that there is no genuine dispute as to any material fact" and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a), In other words, summary judgment should be granted "only when it is clear that there is no dispute concerning either the facts of the controversy or the inferences to be drawn from those facts." Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987). "In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities in favor of the nonmoving party." HealthSouth Rehab. Hosp. v. Am. Nat'l Red Cross, 101 F.3d 1005, 1008 (4th Cir. 1996). The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

         Once the moving party has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. Under this standard, "[c]onclusory or speculative allegations do not suffice, nor does a 'mere scintilla of evidence'" in support of the non-moving party's case. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002) (quoting Phillips v. CSXTransp., Inc., 190 F.3d 285, 287 (4th Cir. 1999)).

         III. Discussion

         A petition for habeas corpus must be filed within one year of the latest of several triggering dates given by statute. 28 U.S.C. § 2244(d)(1). The most common triggering date is the denial of Petitioner's direct appeal to the state court of last resort. 28 U.S.C. § 2244(d)(1)(A). The one-year limitations period accrues on the day following the date of state court of last resort's decision, not the date of issuance of its mandate or remittitur. Gonzalez v. Thaler, 132 S.Ct. 641, 654 (2012). Here, there was no direct appeal to the South Carolina State Supreme Court. In such cases, the triggering date is the expiration of the time for seeking such review. 28 U.S.C. § 2244(d)(1)(A). Regarding the present Petition, the time for seeking direct appeal expired on February 25, 2011, and the habeas limitations period accrued on the next business day, February 28, 2011.

         Additionally, the one-year limitations period is tolled during the pendency of PCR proceedings. 28 U.S.C. § 2244(d)(2). The PCR tolling period begins when an initial PCR application is properly filed in state court. Artuz v. Bennett, 531 U.S. 4, 8 (2000). It includes the time during which the denial of the PCR application is on appeal within state courts, including the time between the PCR court's denial of the application and the filing of a timely notice of appeal. Evans v. Chavis,546 U.S. 189, 191, 198, 201 (2006). But it does not include certiorari review by the United States Supreme Court. Lawrence v. Florida,549 U.S. 327, 329 (2007). The tolling period ends when the final state appellate decision affirming denial of the application is filed in the state circuit court. Beatty v. Rawski,97 F.Supp.3d 768, 780 (D.S.C. 2015). Petitioner filed his PCR application on April 4, 2011. The final ...


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