United States District Court, D. South Carolina
ORDER AND OPINION
Margaret B. Seymour Senior United States District Judge
Michael Lorenzo Elmore is an inmate in custody of the South
Carolina Department of Corrections who currently is housed at
Perry Correctional Institution in Pelzer, South Carolina.
Petitioner, proceeding pro se, has petitioned under 28 U.S.C.
§ 2254 for writ of habeas corpus, alleging that he is
being detained unlawfully.
FACTS AND PROCEDURAL HISTORY
pleaded guilty in the Colleton County, South Carolina, Court
of General Sessions on May 1, 1989, to burglary first degree,
grand larceny, armed robbery, and murder. The trial judge
sentenced Petitioner to incarceration for a period of life
for murder and concurrent terms of twenty-five years as to
the remaining charges, the sentences to be served
concurrently to time Petitioner then was serving for previous
convictions in Orangeburg County, South Carolina. On or about
February 29, 1996, Petitioner filed an application in state
court for post-conviction relief (PCR). The matter came
before the Honorable Jackson V. Gregory for a hearing on
February 25, 1997. The PCR judge issued an order dismissing
Petitioner's PCR application on March 31, 1997.
Petitioner did not appeal the PCR judge's order.
filed a second PCR application on or about May 24, 2012. The
Honorable Carmen T. Mullen determined that Petitioner's
second PCR action should be summarily dismissed as successive
under S.C. Code Ann. § 17-27-90. According, the second
PCR judge issued a conditional order of dismissal on
September 4, 2012. A final order of dismissal was issued on
April 2, 2015.
filed the within action seeking federal habeas review on
March 31, 2016. In accordance with 28 U.S.C. § 636(b)
and Local Rule 73.02, D.S.C., this matter was referred to
United States Magistrate Judge Bristow Marchant for pretrial
Scott Lewis, Warden of Perry Correctional Institution, filed
a return and motion for summary judgment on August 22, 2016.
Respondent asserts, among other things, that Petitioner's
§ 2254 petition is time-barred because it was filed
outside the applicable one-year limitations period.
See 28 U.S.C. § 2244. By order filed August 23,
2016, pursuant to Roseboro v. Garrison, 528 F.2d 309
(4th Cir. 1975), Petitioner was advised of the
summary judgment procedures and the possible consequences if
he failed to respond adequately. Petitioner filed a response
in opposition on September 27, 2016.
September 30, 2016, the Magistrate Judge issued a Report and
Recommendation in which he determined that the within §
2254 petition is barred by the applicable limitations period
set forth in § 2244(d)(1)(A) or d(1)(D). Accordingly,
the Magistrate Judge recommended that Respondent's motion
for summary judgment be granted and the § 2254 petition
dismissed. Petitioner filed objections to the Report and
Recommendation on October 24, 2016, to which Respondent filed
a reply on November 10, 2016.
Magistrate Judge makes only a recommendation to this court.
The recommendation has no presumptive weight. The
responsibility for making a final determination remains with
this court. Mathews v. Weber, 423 U.S. 261, 270
(1976). This court may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the
Magistrate Judge. 28 U.S.C. § 636(b)(1).
court may also receive further evidence or recommit the
matter to the Magistrate Judge with instructions.
Id. This court is obligated to conduct a de novo
review of every portion of the Magistrate Judge's report
to which objections have been filed. Id.
2244 provides, in relevant part:
(d)(1) A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to a judgment of a State court. The
limitation period shall run from the latest of -
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time ...