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Elmore v. Lewis

United States District Court, D. South Carolina

January 4, 2017

Michael Lorenzo Elmore, #138418, Petitioner,
v.
Scott Lewis, Warden of Perry Correctional Institution, Respondent.

          ORDER AND OPINION

          Margaret B. Seymour Senior United States District Judge

         Petitioner 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.

         I. FACTS AND PROCEDURAL HISTORY

         Petitioner 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.

         Petitioner 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.

         Petitioner filed the within action seeking federal habeas review on March 31, 2016.[1] 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 handling.

         Respondent 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.

         On 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.

         The 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).

         This 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.

         II. DISCUSSION

         Section 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 ...

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