United States District Court, D. South Carolina, Aiken Division
James B. Curry, #186737, Petitioner,
Warden of Lee Correctional Institution, Respondent.
F. Anderson, Jr. United States District Judge
B. Curry (“Petitioner”), proceeding pro se and
in forma pauperis, filed this petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 against the
warden of Lee Correctional Institution
FACTUAL AND PROCEDURAL BACKGROUND
is a South Carolina Department of Corrections
(“SCDC”) inmate incarcerated at the Lee
Correctional Institution (“LCI”). ECF No. 1 at 1.
On May 23, 2016, Petitioner's petition for writ of habeas
corpus was filed. ECF No. 1-3 at 2. In addition, Petitioner
moved for leave to proceed in forma pauperis under
28 U.S.C. § 1915, ECF No. 8, which was granted on June
17, 2016, by Magistrate Judge Shiva V. Hodges, ECF No. 13.
Magistrate Judge assigned to this action prepared a
thorough Report and Recommendation (“Report”) and
opines that this Court should dismiss this petition without
prejudice and without requiring Respondent to file a return,
rendering Petitioner's motions to expedite and amend his
petition moot. ECF Nos. 10, 18. The Report sets forth in
detail the relevant facts and standards of law on this
matter, and this Court incorporates those facts and standards
without a recitation. Petitioner was advised of his right to
object to the Report, which was entered on the docket on June
17, 2016. ECF Nos. 14, 15. The Magistrate Judge gave
Petitioner until July 5, 2016, to file objections.
Id. Petitioner did not file objections to the
Report. On July 12, 2016, Petitioner filed a letter
correcting a previous selection made on his petition with
regard to exhaustion of remedies; however, this correction is
insignificant to the Report's analysis. ECF No. 17. Thus,
this matter is ripe for the Court's review.
Court is charged with making a de novo determination of those
portions of the Report to which specific objection is made,
and the Court may accept, reject, or modify, in whole or in
part, the recommendation of the Magistrate Judge, or recommit
the matter to the Magistrate Judge with instructions.
See 28 U.S.C. § 636(b)(1). In the absence of
specific objections to the Report of the Magistrate Judge,
this Court is not required to give an explanation for
adopting the recommendation. See Camby v. Davis, 718
F.2d 198, 199 (4th Cir. 1983).
Court modifies the Report to reflect that Petitioner's
one year statute of limitations period for his federal habeas
corpus petition began to accrue no later than after
Petitioner failed to appeal the order dismissing his third
motion for a new trial (issued on March 18, 2010) because, by
that time, his conviction was deemed final. ECF No. 11-1 at
10; see Gonzalez v. Thaler, 132 S.Ct. 641, 656
(2012) (“We further hold that, with respect to a state
prisoner who does not seek review in a State's highest
court, the judgment becomes ‘final' under §
2244(d)(1)(A) when the time for seeking such review
expires.”). On May 14, 2010, when Petitioner filed his
first post-conviction relief (“PCR”) application,
the one year statute of limitations period for a federal
habeas corpus petition was simply tolled. ECF No. 11-1 at 9.
After Petitioner did not appeal the order issued regarding
his PCR application on May 9, 2011, the one year statute of
limitations began to accrue again. ECF No. 11-1 at 20.
filing history of Petitioner's case is complex and
includes several motions, a second PCR application, which was
deemed untimely,  and two state habeas corpus petitions. ECF
11-1. Nonetheless, even if the Court only counted the days
between (1) the finality of Petitioner's conviction and
his first PCR application; (2) the finality of his first PCR
application and the filing of his second PCR application; and
(3) the South Carolina Supreme Court's “final
ruling in this matter, ” ECF No. 1-2 at 11, and the
date the federal habeas corpus petition was filed in this
Court, Petitioner has well exceeded the one year statute of
limitations allowed. Therefore, Petitioner's federal habeas
corpus petition is untimely under 28 U.S.C. § 2244(d).
the Magistrate Judge correctly recommended that Petitioner is
not entitled to equitable tolling. ECF No. 14 at 6-8. Because
Petitioner's habeas corpus petition is barred pursuant to
28 U.S.C. § 2244(d), the Court will not address whether
the claims in the petition are procedurally barred.
careful review of the record, the applicable law, and the
Report, this Court finds the Magistrate Judge's
recommendation is proper. Accordingly, the Court
ADOPTS the Report and Recommendation of the
Magistrate Judge, ECF No. 14, as modified, and dismisses this
petition without prejudice and without requiring Respondent
to file a return, rendering Petitioner's motion to
expedite moot, ECF No. 10. In addition, Petitioner's
motion to amend his petition is futile and moot. ECF No. 18.
because Petitioner has failed to make “a substantial
showing of the denial of a constitutional right, ” a
certificate of ...