United States District Court, D. South Carolina
Howe Hendricks United States District Judge.
matter is before the Court on Emilio Rabasa Edward's
("Edward" or "Petitioner") pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. On May 18, 2016, Respondent filed a motion for
summary judgment, to which Edward filed a response in
opposition. Edward also filed a cross-motion for summary
judgment on June 1, 2016.
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 Bristow Marchant 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 the matter is ripe for review.
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.
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:
1(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