United States District Court, D. South Carolina
Richard Mark Gergel, United States District Judge.
matter comes before the Court on the Report and
Recommendation (R & R) of the Magistrate Judge (Dkt. No.
24), recommending that Respondent's Motion for Summary
Judgment be granted and the habeas petition be dismissed. For
the reasons stated below, the Court ADOPTS
the R & R as modified, GRANTS
Respondent's Motion for Summary Judgment, and
DISMISSES the habeas petition.
December 2, 2008, Petitioner was convicted of two counts of
burglary first-degree and sentenced to sixteen years
imprisonment on each charge, the sentences to run concurrent.
Petitioner filed a direct appeal, and the South Carolina
Court of Appeals affirmed Petitioner's convictions and
sentences on August 15, 2011, and Petitioner did not seek
further review. Petitioner then filed an application for
post-conviction relief (PCR) on January 10, 2011, which was
dismissed with prejudice. Petitioner's counsel filed a
Johnson petition for writ of certiorari in the South
Carolina Supreme Court, which was denied. Remittitur was
issued on October 24, 2014, and filed in the circuit court
four days later on October 28, 2014, Petitioner filed the
instant federal habeas petition on November 13, 2015. (Dkt.
Nos. 1, 1-3). The Petition raises two grounds for relief;
GROUND ONE: "Trial Judge should not have [found] me
guilty one Burglary charge";
GROUND TWO; "Trial Court err[ed] on denial of motion for
(Dkt. No. 1 at 5, 7).
Magistrate Judge found that the Petition was untimely and
recommended granting Respondent's motion for summary
judgment. (Dkt. No. 24). Petitioner filed timely objections
to the R&R. (Dkt. No. 26). The matter is now ripe for
this Court's review.
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, 270-71
(1976). The Court may "accept, reject, or modify, in
whole or in part, the findings or recommendations made by the
magistrate." 28 U.S.C. § 636(b)(1). This Court is
charged with making a de novo determination of those
portions of the R & R or specified proposed findings or
recommendations to which objection is made. Diamond v.
Colonial Life & Ace. Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005) (quoting 28 U.S.C. § 636(b)(1));
accord Fed. R. Civ. P. 72(b).
portions of the R & R to which no specific objection has
been made, this Court "must 'only satisfy itself
that there is no clear error on the face of the record in
order to accept the recommendation.'" Id.
(quoting Fed. R. Civ. P 72 advisory committee note).
Moreover, in the absence of specific objections to the R
& R, the Court need not give any explanation for adopting
the Magistrate Judge's analysis and recommendation.
See Camby v. Davis, 718 F.2d 198, 199-200(4thCir.
Magistrate Judge found that the statute ran on June 15, 2015.
(Dkt. No. 24 at 16). The Court finds that the statute ran
four days later on June 19, 2015. The Magistrate Judge found
that the statute was tolled during the PCR proceeding and
began to run again on October 24, 2014, when the Supreme
Court of South Carolina issued remittitur in the appeal from
the denial of Petitioner's PCR application. (Dkt. No. 24
at 16). This Court recently adopted the reasoning of
Beatty v. Rawski, 97 F.Supp.3d 768 (D.S.C. 2015),
and held that a South Carolina PCR proceeding is
"pending" under Section 2244(d)(2) until remittitur
is filed in the circuit court. Lyles v. Reynolds,
No. 6T5-CV-04229-RMG, 2016 WL 4940319, at *3 (D.S.C. Sept.
14, 2016). Therefore, the statute began to run again on
October 28, 2014, when remittitur was filed in the circuit
court rather than on October 24, 2014, when remittitur was
issued. The Court modifies the R&R to so state. However,
this does not change the outcome.
Petition was filed on November 13, 2015, almost five months
after the statute had run. The Court agrees with the
Magistrate Judge that equitable tolling is not applicable
here. Equitable tolling is only recognized in cases where the
petitioner can show that (1) he has been diligently pursuing
his rights and (2) some extraordinary circumstance prevented
him from filing his habeas position in a timely manner.
Holland v. Florida,560 U.S. 631, 649 (2010) (citing
Pace v. DiGuglielmo,544 U.S. 408, 418 (2005)).
"Recourse to equitable tolling must be guarded and
infrequent." Bogan v. South Carolina, 204
Fed.App'x 160, 160-161 (4th Cir. 2006). Thus, "any
resort to equity must be reserved for those rare instances
where-due to circumstances external to the party's ...