United States District Court, D. South Carolina, Charleston Division
Howe Hendricks United States District Judge.
matter is before the Court on Freddy Sibrian's
(“Sibrian” or “Petitioner”) pro
se petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. On November 16, 2015, Respondent filed a
motion for summary judgment, to which Sibrian filed a
response in opposition. In accordance with 28 U.S.C. §
636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d) (D.S.C.),
the matter was referred to a United States Magistrate Judge
for initial review. On June 29, 2016, Magistrate Judge Mary
Gordon Baker filed a Report and Recommendation
(“Report”), finding that Petitioner failed to
timely file the instant petition and recommending that the
Court grant Respondent's motion for summary judgment.
Petitioner filed written objections to the Report, and
Respondent filed a reply to Petitioner's objections.
The Magistrate Judge's Report
Court is charged with conducting a de novo review of
any portion of the Report to which a specific objection is
registered and may accept, reject, or modify, in whole or in
part, the recommendations contained in that Report. 28 U.S.C.
§ 636 (b)(1). Any written objection must specifically
identify the portion(s) of the Report to which the objection
is made and the basis for the objection. Id. After a
review of the record, including the Report and
Petitioner's objections, the Court finds that the
Magistrate Judge adequately and accurately summarized the
facts and applied the correct principles of law.
Legal Standard for Summary Judgment
grant a motion for summary judgment, this Court must find
that “there is no genuine issue as to any material
fact.” Fed.R.Civ.P. 56(c). The Court is not to weigh
the evidence, but rather to determine if there is a genuine
issue of fact. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986). If no material factual disputes remain,
then summary judgment should be granted against a party who
fails to make a showing sufficient to establish the existence
of an element essential to that party's case, and on
which the party bears the burden of proof. Celotex Corp.
v. Catrett, 477 U.S. 317 (1986). All evidence should be
viewed in the light most favorable to the non-moving party.
See Perini Corp. v. Perini Constr., Inc., 915 F.2d
121, 123-24 (4th Cir. 1990).
The AEDPA's Statute of Limitations
to the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), as amended in 1996, a one-year period
of limitation applies to an application for “a writ of
habeas corpus by a person in custody pursuant to the judgment
of a state court.” 28 U.S.C. § 2244(d)(1). The
limitation period for filing a § 2254 petition
concerning a specific state court judgment begins to run from
the latest of four possible dates:
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the