United States District Court, D. South Carolina, Charleston Division
Richard Mark Gergel United States District Court Judge
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
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.)
Report and Recommendation of the Magistrate Judge
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).
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).
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).
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)).
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
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