United States District Court, D. South Carolina, Charleston Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE Senior United States District Judge
matter is before the court on Petitioner's pro
se petition for writ of habeas corpus, filed in this
court pursuant to 28 U.S.C. § 2254.
accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02(B)(2)(c), DSC, this matter was referred to United
States Magistrate Judge Mary Gordon Baker for pre-trial
proceedings and a Report and Recommendation. On September 15,
2016, the Magistrate Judge issued a Report recommending that
Petitioner's motion be summarily dismissed as
time-barred. ECF No. 9. The Magistrate Judge advised the
parties of the procedures and requirements for filing
objections to the Report and Recommendation and the serious
consequences if they failed to do so. Petitioner filed
objections to the Report on September 30, 2016. ECF No. 12.
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. See Mathews v. Weber, 423 U.S. 261 (1976).
The court is charged with making a de novo
determination of any portion of the Report and Recommendation
of the Magistrate Judge to which a specific objection is
made. The court may accept, reject, or modify, in whole or in
part, the recommendation made by the Magistrate Judge or
recommit the matter to the Magistrate Judge with
instructions. See 28 U.S.C. § 636(b).
court has conducted a de novo review of the record
and has considered Petitioner's objections, the entire
record, the applicable law, and the Report and Recommendation
of the Magistrate Judge. After review, the court declines to
adopt the Report's assessment of the timeliness of the
petition and whether equitable tolling applies to this
matter. For the reasons discussed below, the court finds the
petition is timely filed, and that tolling has extended the
filing period in this matter.
noted by the Magistrate Judge, this matter is controlled by
the Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”). Under the AEDPA, the limitation period
for § 2254 petitions runs from the latest of:
(d)(1)(A) the date on which the judgment of conviction
becomes 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 making a motion by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if that 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
exercise of due diligence.
(d)(2)The time during which a properly filed application for
State post-conviction or other collateral review with respect
to the pertinent judgment or claim is pending shall not be
counted toward ...